Almost a year after the life of the last Commission came to an end, Minister of State, Joseph Harmon is of the belief that the Judicial Service Commission (JSC) will soon be reconstituted.
The Minister spoke about the Commission during a post-Cabinet press briefing. According to Harmon, it is something that Government is actively looking to have reconstituted.
“That is something that is receiving active consideration,” Harmon revealed, when asked about the JSC. “As you know we only recently appointed some persons who will serve on the Commission.”
“The Public Service Commission, the Chairman of that Commission actually serves on the Judicial Service Commission as well. And I believe very shortly we’ll get that done,” he said.
This is a reference to Patrick Yarde, who was sworn in last year as the acting Public Service Commission Chairman. Other ex-officio members of the JSC had included acting Chancellor of the Judiciary, Justice Yonette Cummings-Edwards, as well as Justices Prem Persaud and Lennox Perry.
One of the most important functions of the JSC is making recommendations to fill vacancies within the Judiciary. In February 2016, the then JSC had recommended that High Court Judges, Justices Rishi Persaud and Dawn Gregory be appointed to the Court of Appeal. It also recommended that Attorneys Sandil Kissoon and Damone Younge be appointed Puisne Judges.
In July, Rishi Persaud was elevated to serve in the Court of Appeal. Attorneys Simone Morris-Ramlall, Younge, Kissoon and Gino Persaud were appointed Puisne Judges.
Article 128 (1) of the Constitution provides that Judges, other than the Chancellor and Chief Justice, are appointed by the President “who shall act in accordance with the advice of the Judicial Service Commission.”
Article 128 (2) also provides that “the President shall act in accordance with the advice of the Judicial Service Commission and appoint a person to act in the office of Justice of Appeal or Puisne Judge, as the case may be.”
There is leeway for the President, however, in Article 111 (1), which states: “In the exercise of his functions under this Constitution or any other law, the President shall act in accordance with his own deliberate judgement except in cases where, by this Constitution or by any other law, he is required to act in accordance with the advice or on the recommendation of any person or authority.”
Subsection two states, “Whereby this Constitution the President is directed to exercise any function on the advice or recommendation of any person or authority, he may, in accordance with his own deliberate judgement, once refer any such advice or recommendation back for reconsideration by the person or authority concerned.”
It goes on to state that “if that person or authority, having reconsidered the original advice or recommendation, substitutes therefor a different advice or recommendation, as the case may be, the President shall act in accordance therewith; but save as aforesaid he shall act in accordance with the original advice or recommendation.”
The last JSC expired on September 30, 2017 and former Attorney General Anil Nandlall has been critical of the impasse. In a post on social media, he had stated: “Once again, the burden is mine to remind them that there is currently no properly constituted Judicial Service Commission. This position has obtained for several months now. So, as result of this constitutional vacuum, no judges or magistrate can be appointed.”
