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