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Sunday, May 14, 2017

With the recent Privy Council decision in favour of Reginald Dumas and his challenge to the appointments made by the President to the Police Service Commission after parliamentary ratification, the spotlight has now turned to whether or not the Judicial and Legal Service Commission (JLSC) is properly constituted.

The JLSC is established by section 110 of the Constitution and it “shall” consist of (i) the Chief Justice, (ii) the Chairman of the Public Service Commission; and (iii) three appointed members who shall be (a) a sitting or former judge, and (b) two persons who have legal qualifications at least one of whom should not be in active practice.

In recent times, the issue of the age of the members of the JLSC has arisen in the context of whether or not the commission is properly constituted.

The chairman of the Public Service Commission (PSC) is listed there in an ex-officio capacity with no requirement for legal or age qualifications because the tenure of the PSC chairman is governed by the provisions of section 126, while the Chief Justice has a retirement age set at 65 by sections 106(1) and 136(1) of the Constitution.

The wording of section 110 of the Constitution may lead one to believe that the framers of the Constitution only envisaged that there should be one sitting or former judge on the JLSC because no specific provision is made otherwise.

For the remaining two members, “legal qualifications” are required for anyone being appointed to those positions.

This may require some interpretation in respect of whether being called to the Bar is all that is required or whether having an LLB and/or an LLM and/or a PhD/D Juris in Law (without being called to the Bar) will suffice as “legal qualifications” seeing that there is no definition.

In other words, is being qualified as an advocate or instructing attorney the only consideration with respect to “legal qualifications” or would someone who is qualified to understand the law (as opposed to practicing it) be considered to have “legal qualifications”? There is the presumption that being called to the Bar is what having “legal qualifications” means.

One of the two remaining members of the JLSC is permitted to be in active legal practice which suggests that they must have been called to the Bar. The other member may have “legal qualifications” however defined and may not be in active legal practice. The three appointed members are required to hold office in accordance with section 136 of the Constitution (which is the same section that applies to the Chief Justice), but subject to section 126(3)(a).

Section 126(3)(a) proposes that the term of the appointment of these appointed members could range between three and five years which could imply that such variation is required in order to satisfy the possibility of a person so appointed avoiding exceeding the age of 65 specified in section 136(1).

Section 136(3) specifies that nothing done by the officer who has attained the age of 65 “shall be invalid” if he attains the age at which he is required to vacate his office (presumably 65 or such other age as may be prescribed).

It is obvious that subsections 136(1) and (3) relate to making appointments of people who are under the age of 65 as both subsections speak to the future of “attaining” the age of 65 or such other age as may be prescribed.

As a consequence, section 110(3)(a), envisages a sitting judge being appointed who is under the age of 65 or a former judge who is no longer on the bench and who is under the age of 65 when the simple wording of the subsection is cross-referenced against subsections 136(1) and (3).

Section 110(3)(b) envisages two people who are under the age of 65 when cross-referenced against subsections 136(1) and (3).

In respect of the three appointed members, it would appear that successive presidents may have erred in appointing people to the JLSC who have already retired from the bench after they had turned 65.

Seeing that there is a vacancy on the JLSC for one more member, it will be necessary to determine which category is missing after determining the categories into which the other two appointed members actually fall.

Based on the length of time that such a vacancy has existed, it is possible that there might be the need to interpret what is a reasonable period of delay between the creation of a vacancy on the JLSC and the appointment by the President to fill the vacancy. Perhaps, the more compelling questions are how long has a vacancy existed on the JLSC and why has it not been filled ?

It is true that the JLSC can function with only a quorum of three however, that is determined on the basis of a membership of five. The spotlight has suddenly been shone on the JLSC because of the recent controversies related to appointments made to the judicial bench from the magisterial bench.

The Dumas Privy Council judgment opens the door to this scrutiny of the membership of the JLSC.


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