Issues surrounding appointment of Mr. Robert Schuster

From Courtenay Barnett

Colin,

It appears to me upon a legal analysis that for the past 3 months the “Judge” was not properly appointed in accordance with the law ( see attachments and below). But, there are other issues in the wider sense of the conduct of the Governor and the Judicial Services Commission in making the appointment ( as you can glean).

Dear Editor,

Re: Concerns about the appointment of Mr. Robert Schuster as a Judge of the Supreme Court

An additional 47 signatures have been delivered to His Excellency the Governor and there is on-going concern as more persons are supporting the Petition. I have been asked by a number of Petitioners to raise in the public domain points of concern which have arisen, namely:-

1. Despite all best efforts to find the Gazette in which the appointment of Mr. Schuster was published, neither the Gazette office nor my personal searches have been able to find any publication of the appointment in the Gazette.

2. Point 1 above, has legal implications, because the Interpretation Ordinance sections 3 and 26(1) on an accurate reading requires the Gazette publication because of these words:-

s. 26(1) “All subsidiary legislation made under any Ordinance or other lawful authority and having legislative effect shall be published in the Gazette…”

And section 3 of the Interpretation Ordinance has a definition of “ subsidiary legislation” which encompasses the Governor’s instrument of appointment of a Judge.

3. The issue is not that His Excellency does not have the lawful authority, but that for the appointment to be lawful, there has to be compliance with that which the law stipulates to make the appointment lawful. No more or less is required because this, in essence, complies with the upholding of the Rule of Law.

4. If one were to consider and compare a recent precedent, then in the current SIPT cases, the re-appointment of Mr. Justice Harrison was first Gazetted before Mr. Justice Harrison sat on the Bench, thus the same procedure for lawfulness had to have been followed with the appointment as a Supreme Court Judge of Mr. Robert Schuster.

5. Since His Excellency signed an instrument of appointment on the 27th February, 2015 with a commencement date of 1st March, 2015 and the appointed Judge is presently sitting and deciding cases, then does this fact in and of itself make the Judgements and Decisions made since 1st March, 2015 in accordance with that of a lawfully appointed Judge ( i.e. in the sense of compliance with s. 3 and more particularly, s. 26(1) of the Interpretation Ordinance)?

6. Since s. 19(2) of the Constitution requires the giving of reasons for Decisions made by persons acting on behalf of the Government, namely, the Judicial Services Commission, then having regards for the wording in the Constitution:-

“Every person whose interests have been adversely affected by such a decision or act has The right to request and be given written reasons for that decision or act.”

the following problems arise:-

i) The Petition was one of the 30th January, 2015, well in advance of His Excellency signing the 27th February, 2015 instrument of appointment for Mr. Robert Schuster to preside as a Judge of the Supreme Court of the Turks and Caicos Islands, thus the Judicial Services Commission had to have been aware prior to the appointment of the facts contained in the Petition complaining about Mr. Schuster.

ii) Once the Judicial Services Commission became aware of the concerns expressed they then were in the ambit of section 19(2) of the Constitution and were and still are affixed with a duty to give written reasons.

iii) Since it appears that the appointment to the Bench is inchoate and apparently not lawful in the context of section 26(1) of the Interpretation Ordinance, then His Excellency in the public interest is not only free to assist in ensuring that there is compliance by the Judicial Services Commission with the stipulation and duty imposed upon the Commission to provide written reasons – but – can himself reconsider the need for appointment of a Tribunal and ultimately give reasons as to why or not a Tribunal is/is not appointment to investigate the appointment in discharge of a duty imposed upon His Excellency by section 85 (7) (a) of the Constitution. Surely, points 1 to 5 must provide any fair-minded and/or reasonable administrator with manifest cause so to do?

The points of concern here raised are more fully and directly addressed to His Excellency, the Governor in a letter on behalf of the Petitioners of the 28th May, 2015.

Respectfully,

Courtenay Barnett (for and on behalf of the Petitioners)”

END

See iNews Cayman related story published May 20 2015 “TCI legal profession organise petition against appointment of judge” at: http://www.ieyenews.com/wordpress/tci-legal-profession-organise-petition-against-appointment-of-judge/

IMAGE: judge Courtenay Barnett