What happens if some members of the JSC are not present at the interviews?
It has happened on more than one occasion that one of more members of the JSC are not present at all or part of the JSC interviews.
We question what happens when a member is missing and try to deduce how the system works:
We know that for the heads of court, the Chief Justice and the President of the Supreme Court of Appeal, they have to have either be there or have their Deputy available to represent them. We also know that the Premier must be represented.
However, the quorum for the rest of the committee has not been pronounced on in the courts. We think that if any candidate gets less than 13 votes, they are not regarded as having a majority. This appears to be irrespective of who is in the room.
A vacancy, or unfilled position on the JSC does not affect the validity of the proceedings or decisions of the commission, according to the JSC. The courts say “I am not persuaded that this provision is necessarily constitutional, but even assuming it is, it simply ensures that proceedings and decisions of the JSC are not invalidated by the fact that a vacancy has not yet been filled. It does not deal with the position of the ‘temporary absence’ of members of the JSC during a meeting, as distinct from a ‘vacancy’ occurring.”
The courts have also said for the JSC to “be properly constituted…, its full complement must be in attendance during the proceedings and the decision making process, unless there are sound reasons for the non-attendance of the member.”
We therefore assume that whether a particular meeting is properly constituted or not must be decided on in an assessment of the membership of that particular meeting.