Ramesh: Let JLSC appoint Industrial Court members

FORMER UNC Attorney General Ramesh Lawrence Maharaj SC submitted yesterday that the Judicial and Legal Service Commission (JLSC) should appoint members of the Industrial Court, and not the Cabinet which has been the practice for years. Maharaj believes that the JLSC should advise the President who in turn will formally sign the instruments of appointment. Maharaj said the practice of the Cabinet appointing the Industrial Court members should cease as this goes against the doctrine of the separation of powers — the executive and the judiciary.

Maharaj, along with Rikki Harnanan and Darrell Allahar, are representing Sam Maharaj who is seeking judicial review of the decision of the Cabinet not to re-appoint him as a member of the Industrial Court. Martin Daly SC and Elton Prescott appear for Prime Minister Patrick Manning who is also the head of the Cabinet. Hearing resumes this morning before Justice David Myers in the Port-of-Spain Fourth Civil Court. Maharaj said that under the 1962 constitution, the Chief Justice was appointed by the Governor General on the advice of the Prime Minister. When the 1976 constitution came into existence, that process was changed with the President having the absolute discretion in appointing the Chief Justice. “This is very significant as it shows clearly that under the existing constitution, the Parliament took the step that the appointment of a Chief Justice did not have the risk of political interference or political patronage,” Maharaj added.

He pointed out that the Cabinet does not have the power to appoint judicial officers. Judicial officers, he argued, are appointed by the JLSC, with the President making the appointment on the advice of the JLSC. Maharaj said the selection of magistrates is done by the JLSC. “With respect to the Chief Justice, the selection is not done by the Prime Minister or the Cabinet. It is done by the President in his discretion.” He said that successive Governments accepted that they had the power to appoint members to the Industrial Court. “But whatever happened in the past, the question now is whether that section of the Industrial Relations Act is compatible with the constitution. If it is not, what should the court do with such a matter?” Maharaj asked.  Maharaj said that based on the affidavit of Labour Minister Larry Achong, it was clear that the Cabinet decided this matter in an arbitrary way.

In his affidavit, Achong said that based on his observations, Sam Maharaj could neither write, read nor speak properly and therefore was not suited to be a member of the Industrial Court. According to attorney Maharaj, no steps were taken to give his client an opportunity to be heard on the allegations made by Minister Achong. He said his client had a right to be heard and he based his argument on the Privy Council decision in which High Court Judge Richard Crane was suspended by the JLSC without the opportunity to be heard.