TRANSFORMING JUDICIAL SELECTION PROCEDURES: PRIVY COUNCIL REQUIRES TRANSFORS TRINIDAD HIGH COURT SELECTION PROCEDURE

By Richard Clayton QC

In A-G of Trinidad v Maharaj the High Court and Court of Appeal in Trinidad decided that the Judicial and Legal Services Commission (which appoints High Court judges) should comprise just judges and ex judges.  However, in an important new judgment delivered on 11 February 2019 the Privy Council reversed the Trinidad courts and significantly altered the process for selecting judges- by extending the membership of the Commission to non-lawyers.

The Privy Council did not explain the controversial background to the appeal at any length.  However, 2. In April 2016 the Commission announced a number of High Court vacancies.  On 15 March 2017 the Commission announced the appointment of a number of new High Court Judges including Marcia Ayers-Caesar, the former Chief Magistrate.  Commission stated that, in respect of its recruitment interviews, candidates are routinely asked when, should they be successful, they would be in a position to assume duty, having regard to their outstanding professional commitments.  It then transpired that the number of the list of outstanding matters Ms Ayers-Caesar had to decide was much larger than that she initially disclosed to the Commission.  This failure generated considerable controversy in Trinidad and on 27 April 2017, she resigned from her High Court appointment.   

Two new High Court appointments were made 5 June 2017 and a public interest constitutional motion was brought- making two complaints: first, that the Commission had comprised only four (rather than 5 members) in the preceding 14 months, and secondly, that the Commission could not solely consist of judges and ex-judges.  An injunction was granted by the first instance judge, which the Court of Appeal reversed the following day, holding that the Commission might comprise only 4 members and that it was lawful for its members to comprise only judges and ex-judges.  The applicant then appealed the decision to the Privy Council.

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