Attorney General of Trinidad and Tobago v Maharaj

The Constitution of Trinidad and Tobago must be interpreted in its full structure and contemporary context. Section 110(3)(a) and (b) create distinct appointment pools. Judges and former judges in retirement fall within paragraph (a), and cannot be appointed under paragraph (b). The Board left open whether a former judge who has returned to legal practice may qualify under paragraph (b). The Judicial and Legal Service Commission must comprise five members. A statutory validation provision may be relevant to a challenge to a particular act, but its operation was not decided where no such challenge was made.

Maharaj challenged the composition of the Judicial and Legal Service Commission shortly before two new judges were due to be sworn in. He contended that a retired judge could not have been appointed under section 110(3)(b) of the Constitution. Seepersad J granted an interim order, but the Court of Appeal heard the appeal immediately and dismissed the substantive claim. It unanimously held that a retired judge could be appointed under paragraph (b), while a majority held that the Commission required five members. The Board considered the proper construction of section 110(3)(b), the required number of Commission members and the possible validating effect of section 36 of the Interpretation Act 1962.

Appeal allowed. Lady Black delivered the judgment of the Board. The Board declared that serving judges and former judges in retirement could not be appointed to the Judicial and Legal Service Commission under section 110(3)(b), and that section 110 required the Commission to comprise five members.

1. The historical materials and a general purposive approach did not resolve the issue. Section 110(3) had to be read as a whole and in context.
2. The two limbs of section 110(3) create separately described appointment pools. Paragraph (a), requiring one person from among those who hold or have held judicial office, deals with judges and former judges. The wording supports a limit of one appointment from that pool. Paragraph (b) deals with two persons with legal qualifications, at least one of whom is not in active practice.
3. Although judges possess legal qualifications in the abstract, it is strained to describe a judge as being in or out of active legal practice. The language of paragraph (b), contrasted with paragraph (a), and the reference to consultation with professional organisations, strongly indicate that judges were not intended to fall within paragraph (b).
4. The Constitution was not frozen at the date of drafting. Changed circumstances, including the possibility of judges returning to legal practice, were relevant, although not determinative. The Board did not decide whether a former judge who had resumed legal practice could qualify under paragraph (b).
5. Section 36 of the Interpretation Act 1962 might have a role where a particular act of the Commission was challenged for a defect in its composition. As no such challenge was before the Board, it declined to express a concluded view on the provision’s operation.
6. The Commission consists of the two ex officio members identified in section 110(2)(a) and (b), together with the three members appointed under section 110(3). The parties were invited to submit an agreed draft of the declarations.

• Privy Council: Allowed the appeal and made declarations concerning the interpretation and required composition of the Judicial and Legal Service Commission.
• Court of Appeal of the Republic of Trinidad and Tobago: Dismissed the substantive claim. It unanimously held that a retired judge could be appointed under section 110(3)(b); a majority held that five members were required.
• High Court: Seepersad J granted an interim order preventing the proposed judicial appointments pending further consideration.