Paula-Mae re-appoints Pemberton to JLSC

Justice of Appeal Charmaine Pemberton was yesterday sworn in as a member of the Judicial and Legal Service Commission (JLSC), under section 110(3)(a) of the Constitution of TT.

This was confirmed in a release from the Office of the President yesterday evening. President Paula-Mae Weekes said the appointment was made after "an uncommonly robust consultation process."

The appointment comes after Opposition leader Kamla Persad-Bissessar asked the President to hold her hand in re-appointing Pemberton to the JLSC.

Persad-Bissessar and Weekes had engaged in a series of correspondence between the two offices between February 25 and March 13, 2019, regarding the appointment.

In the final letter dated March 13, Persad-Bissessar referenced the first letter dated February 25, in which the President indicated she was seeking to fix the error made in appointing Pemberton in the first place.

Last month, UNC senator Gerald Ramdeen asked Weekes to reconsider Pemberton's re-appointment to the JLSC after the Privy Council ruled former president Anthony Carmona made an error in appointing her. Members of the JLSC are appointed by the president and Pemberton was appointed to the JLSC in 2017.

Weekes admitted that there was an error in the appointment after UNC activist Devant Maharaj questioned the appointment. Maharaj’s concerns about Pemberton’s appointment stemmed from her promotion to the appellate court ahead of other senior High Court judges. The concern was also compounded by Pemberton’s quick appointment to the JLSC.

Pemberton was appointed a puisne Judge in 2005 and elevated to the Court of Appeal in September 2016. Before this she served as a puisne Judge in the Eastern Caribbean Supreme Court from 2002 to 2005.

In yesterday's release Weekes said when Pemberton was sworn in as a member of the JLSC on September 19, 2017, the Prime Minister had no objection and his response contained a reference to section 110(3)(a).

"The Leader of the Opposition did not respond. However, the instrument of appointment was faulty, in that it purported to appoint Pemberton under Section 110(3)(b) of the Constitution. This error was drawn to my attention by way of a letter dated February 15, 2019, from attorneys-at-law representing Mr Devant Maharaj. It was clear that the appointment could not stand."

Section 110(3)(a) provides that the appointment be made “from among persons who hold or have held office as a Judge of a Court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or a Court having jurisdiction in appeal from any such Court."

Weekes said serving and retired judges were, therefore, eligible and thought it unwise to consider puisne judges as one function of the JLSC was to consider elevations to the Court of Appeal. She said a puisne Judge could find it necessary to recuse him or herself from the deliberations, but that would not be a satisfactory answer as the potential for awkwardness could arise if that judge was bypassed.

The President said during the consultation phase, Persad-Bissessar inquired of the JLSC whether there had been any complaints about Pemberton's conduct which the Commission said there was none.

An attorney-at-law did in 2006 complain to the JLSC about the way in which he was treated in Court by Pemberton, however no investigation was conducted as the JLSC determined that the complaint did not reveal any misconduct on the part of the Judge.

Weekes described Pemberton’s attendance at JLSC meetings and interviews during her tenure as exemplary, where she attended 17 of 18 meetings and all 23 of the interview sessions. She attended no meetings after February 20, 2019.

The President said notwithstanding that there were eligible judges senior to Pemberton, in all of the circumstances, including that the intention had always been to appoint her under section 110(3)(a); that the error was no fault of Pemberton; she was faithful to her appointment; there was nothing to suggest that she was, in any way, unfit to hold the position; had her original appointment been valid, she would have been eligible for reappointment at the end of her term and that the PM had no objection to the appointment, and having duly considered all matters raised by the Persad-Bissessar, "I appointed Pemberton as a member of the JLSC under section 110(3)(a)."