Appeal Court derails UNC move against CCJ

United National Congress (UNC) MP for Fyzabad Chandresh Sharma was again refused leave for judicial review, this time in the Court of Appeal, against the swearing in of members of the Regional Judicial and Legal Service Commission (RJLSC) by Chief Justice Sat Sharma. The RJLSC is responsible for appointing judges to the Caribbean Court of Justice. Sharma’s attorneys Fenton Ramsahoye and Anand Ramlogan, in seeking leave for judicial review before Justice Peter Jamadar, argued among other things that there was no law existing to allow the CJ to perform such a function. The judge refused leave and Sharma appealed his decision. Proceedings were served on the CJ, but he took no part in the appeal.

In dismissing the appeal, Justices Roger Hamel-Smith, Lionel Jones and Rolston Nelson, said: “Participation in the proceedings of these international institutions by personae designatae, whether the CJ of a contracting state or otherwise, takes place on the international law plane and is not amenable to the processes of our court. “It is precisely because the CCJ agreement and protocols form no part of TT law at the present time and neither grant nor deprive citizens of rights or obligations in domestic law, that the application before the learned judge (Justice Peter Jamadar) was grossly misconceived.” The court also observed that there is no expressed prohibition in the Constitution or any other law which prevents the CJ from performing extrajudicial duties outside the judicature. The court observed that the CJ may deliver a speech at a function or write learned articles extra-judicially. “Neither of these activities is incompatible with the role of a judge,” the court added.

The judgment, which was delivered by Nelson, said: “I am firmly of the view that those activities and the part played in them by the CJ cannot be challenged in judicial review proceedings. Both in making and performing the CCJ agreement, the exercise of the prerogative may not be challenged.” The court said that those activities enhanced the independence of the Commission and ultimately the CCJ, and pronounced: “The role of the CJ at this stage was purely transitional ie, to appoint the members of the first Commission.”  Nelson in his judgment said that he accepted the submission by the Attorney General that there is no evidence to suggest that the actions of the CJ were in response to an instruction or demand from the Executive or the Government.

The court also found that there was no breach of the constitutional wall between the Executive and the Judiciary. Representing the State in the matter were attorneys Anthony Jacelon SC and Kerwyn Garcia. The State was awarded costs. In doing so, Nelson said: “This appeal is therefore dismissed with costs fit for senior and junior counsel for the AG. While the judge made no order for costs in the court below in spite of the participation of the AG in the application, I think it is only fair that costs be awarded in his favour.”