Retired Court of Appeal Justices Roger Hamel-Smith and Humphrey Stollmeyer, who sit on the Judicial and Legal Service Commission (JLSC), have found themselves in a legal wrangle over the constitutionality of their appointments.
In a pre-action protocol letter served on Chief Justice Ivor Archie yesterday, former attorney general Anand Ramlogan SC, acting on behalf of client Devant Maharaj, is questioning the constitutionality of the JLSC and the validity of the appointments of the two former judges, both over the age of 65, to the JLSC.
In the letter to Archie, in his capacity as head of the JLSC, Ramlogan said his client had read with interest the press releases from the CJ and Law Association, as well as comments from leading senior counsels and former judges in the press “and is concerned about the constitutionality of the recent round of judicial appointments in light of the ensuing controversy.”
Ramlogan said his client was of the view “that there is a lack of transparency and public accountability in the process for the appointment of judges, which has undermined public confidence in the administration of justice.” He said “the public is, quite simply, ambushed by sudden announcements of appointments and promotions.”
“There is no opportunity for any meaningful consultation or feedback from the public as the most important stakeholder. By the time the public sees pictures of new judges in the media, the appointment is a fait accompli and hence there is no possibility for review or reconsideration,” Ramlogan wrote, adding it was for this reason his client wanted to “ensure that the JLSC is properly constituted in accordance with the law.”
Maharaj, he said, was seeking “interpretation of the relevant sections of the Constitution in the public interest.” The relevant sections being questioned are 110, which details that the commission must have five members including the chairman, chief justice, and section 136, which speaks to the age of the office holder and which states that the holder shall vacate his office on attaining the age of 65 years or such other age as may be prescribed.
The retirement age for judges of the Supreme Court is 65 years and by sections 110 (4) and 136 (1) of the Constitution, no person can be appointed or can continue to serve as a member of the JLSC if they are over 65.
This, Ramlogan said, meant that Stollmeyer and Hamel-Smith are disqualified from serving as JLSC members and hence their appointments are illegal and unconstitutional, invalid, null and void and of no legal effect. Even if their appointments were valid and proper, he said: “It is plain that the JLSC is not properly constituted with four members in the face of section 110, which clearly contemplates a minimum of five members.” He said even if the JLSC could lawfully comprise the present four members, “a further issue arises as to whether the constitutional requirement that “two persons with legal qualifications at least one of whom is not in active practice” is satisfied.” The CJ has until 4 pm on May 12 to respond to the letter.
