Saturday 25th June, 2005



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Weakening of the judiciary

By Kenneth Lalla

It is well established that an independent judiciary is the bulwark of a democracy and the guardian of the liberty of the individual in a free society.

These ideals and imperatives have been entrenched in our Constitution which provides for a judiciary independent of the Executive and legislature and whose judges are expected to dispense justice with integrity, impartiality and objectivity.

However, recent events would appear to have threatened the independence and stability of this institution and, by extension, the rule of law.

On or about April 1, the Prime Minister invoked the provision of Section 137 of the Constitution by electing to make representation to the President for the appointment of a tribunal to investigate the conduct of the Chief Justice as a consequence of allegations made against him by the Attorney General and the Director of Public Prosecution.

The Chief Justice on the other hand is, by way of judicial review, challenging the bona fide of the Prime Minister’s representations to the President.

And more recently it was reported that six judges of the Court of Appeal met with the President to express their dissatisfaction over his appointment of Justice Margot Warner to act as Chief Justice consequent on the absence of Chief Justice Sharma from the country and his bypassing of Justice Roger Hamel-Smith, the most senior justice of appeal.

It is being argued that, traditionally, the most senior justice of appeal has always been appointed to act as Chief Justice whenever the circumstances so warranted.

The power to appoint an acting Chief Justice is vested by Section 103 of the Constitution in the President. However, by this section the President is required as a condition precedent to the making of an appointment to consult with the Prime Minister and the Leader of the Opposition.

This, however, does not mean that the President is bound to accept the views or opinion of either the Prime Minister or the Leader of the Opposition when making the appointment. Accordingly, an appointment made by the President under this section of the Constitution is that of the President and his alone.

The records will show that Justice Hamel-Smith has hitherto acted as Chief Justice on numerous occasions not on the basis of seniority but clearly on the basis of merit, ability and integrity, with seniority being one of the components in the selection process.

While it is open to the President under the Constitution to make such an appointment at whim, it should be noted that previous appointments of Justice Hamel-Smith to act as Chief Justice were clearly made not on the basis of seniority but on the basis of merit.

Indeed, it must be presumed that the holder of the office of President would act fairly and reasonably when making such appointments or in the performance of his functions, although there have been occasions when a former president may have departed from that norm.

Accordingly, fairness and justice would dictate that the claim or traditional claim of Justice Hamel-Smith to act as Chief Justice should have been taken into consideration when the appointment of an acting Chief Justice was being made. While the President is not obliged to give reasons for bypassing Justice Hamel-Smith, it must be presumed that he would have done so only for cause or good reason.

It may well be that the President on this occasion might have taken into consideration facts and circumstances circumscribed around the legal proceedings between Chief Justice Sharma and the Prime Minister in which Justice Hamel-Smith has sworn to an affidavit in support of the Prime Minister’s case.

The President may also have taken into account the fact that while Justice Hamel-Smith was acting as Chief Justice, he, at the request or invitation of the AG, attended a meeting with the AG and the DPP at the AG’s office where certain allegations were made against Chief Justice Sharma and, in pursuance of those allegations, acting Chief Justice Hamel-Smith is alleged to have advised that proceedings for the removal of the Chief Justice could be preferred under Section 137 of the Constitution.

Assuming that the President did take into account those factors when exercising his powers under Section 103 of the Constitution, the question for consideration is whether he would in the circumstances have acted fairly or unfairly.

The President, however, has given no reasons for bypassing Hamel-Smith (according to reports) and rightly claims that he is under no obligation to do so and in this he is supported by former President Arthur NR Robinson who is reported (in the June 12 Express) as saying, inter alia, “I have not heard the reasons. He (the President) acted in accordance with the requirement of the Constitution. It was totally improper for them to question his decision.”

Indeed, it is abundantly clear that Section 103 imposes no legal duty on the President to give reasons when making appointments under this section. On the other hand, the section imposes no restriction or prohibition on him to do so. It was, therefore, entirely up to the President to give or not to give reasons.

While the debate over the justification for bypassing Justice Hamel-Smith goes on, it is clear that one of the bastions of our democracy has been considerably weakened.

According to the June 12 Express, “While the main players have all refused to comment on this latest episode in the unfolding judicial crisis, insiders point to ethnic and political factions, grumblings about appointments to the bench, infighting and serious concerns about the competence of the judiciary.”

In this unfolding scenario, one may well ask the pertinent question whether the exacerbating of an already existing judicial crisis could have been averted had the President communicated to Justice Hamel-Smith his reasons for bypassing him.

It ought to be recognised that we are no longer living in the dark ages when no man had a right to know why he was condemned or being condemned. Indeed, we are now in the age of openness, fairness and transparency, which makes it obligatory, if not mandatory, for a person who is being bypassed for promotion or an acting appointment to be informed of the reasons for so doing.

Indeed, judges are human beings and as such they would seem to have the same interest in and concern over their upward mobility in the judiciary as any public officer in the public service.

In the final analysis it is of paramount importance to note that justice is rooted in confidence and the question to what extent our trust and confidence in the judiciary has been or is being eroded must inevitably be a matter of significant national importance.

Kenneth Lalla is a lawyer and former chairman of the Police and Public Service Commissions

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