24 Feb 2019

Weekes weak week

I note with some amusement that President Weekes ‘suddenly discovered’ an error was made in the paperwork leading up to the appointment of Judge Charmaine Pemberton as a member of the Judicial and Legal Service Commission (JLSC).

“She explained what the error was: “While the relevant instrument of appointment indeed indicated that the Honourable Justice had been appointed, in accordance with the provisions of paragraph (b) of subsection (3) of section 110 of the Constitution, the letters of consultation to the Prime Minister and the Leader of the Opposition dated 21st July, 2017, and which preceded the appointment, referred to section 110 (3) (a).”” [Newsday 23/02/2019]

Being an irreverent and sceptical criticiser of political figures, I now have to ask if the following persons were asleep during the last few years this matter was winding its way through the courts?

  1. The Prime Minister
  2. The Opposition Leader
  3. The ex-President
  4. The current President
  5. The Chairman of the JLSC/Chief Justice

A whole team of knowledgeable lawyers took this all the way to the Judicial Committee of the Privy Council (PC) and no one ‘discovered’ the error until now? I for one believe that when the case was researched for presenting through the High Court, the Court of Appeal, and finally the Privy Council, any genuine error would have been unearthed. Not that it matters.

Justice Pemberton remains illegally appointed. It matters not what the “letters of consultation to the Prime Minister and the Leader of the Opposition” say. The fact that her appointment was made under s110(3)(b) in her ‘instrument of appointment’ clearly makes it illegal (ultra vires or ‘outside the law’) when it was made, and still remains so.

The sceptic in me tends to believe that a bit of jiggery-pokery is being done to save the face of Justice Pemberton, and/or Presidents Carmona and Weekes. Not to mention avoid a constitutional mess where appointments made by the JLSC could be considered null and therefore prisoners could challenge convictions and sentences from those who were appointed to the bench during this period.

An illegal appointment can’t be ‘redressed’ by and as President Weekes would have us believe. That appointment was ‘frozen in time’ when it was made years ago and now any redress lies outside the powers the President thinks she has.

For those who wonder why I am making a big deal out of this, I ask you to consider that decisions made by an illegal JLSC would themselves be illegal. So, any judge appointed by an illegal JLSC is not legally sitting in office, and all of his sentences and decisions are up for review. This is the constitutional mess the country finds itself in.