Court asked to decide if same person can hold office of Chief Justice and Chancellor
November 16, 2006
Legal proceedings have been filed asking the court to determine whether the simultaneous holding of the office of the Chief Justice and Chancellor and performance of their functions by the same person are permitted by the constitution.
In an affidavit in support of the originating summons filed Mr Rex Mc Kay S.C. a director of the plaintiff company Committee for the Defence of the Constitution Inc says that in March 2005, Justice Desiree Bernard demitted office as Chancellor of the Judiciary. He notes that the appointment of a new Chancellor must be made in accordance with Article 127 of the Constitution, which states: The Chancellor and the Chief Justice shall each be appointed by the President, acting after obtaining the agreement of the Leader of the Opposition;
If the office of Chancellor or Chief Justice is vacant or if the person holding the office of Chancellor is performing the functions of the Office of President or is for any other reason unable to perform the functions of his office, then, until a person has been appointed to and has assumed the functions of such office or until the person holding such office has resumed those functions, as the case may be, those functions shall be performed by such other of the Judges as shall be appointed by the President after meaningful consultation with the Leader of the Opposition.
Mc Kay says that he was informed by Robert H.O. Corbin then Leader of the Opposition that on or about the 20th April, 2005 he and the President met with a view to reaching agreement on the appointment of a Chancellor of the Judiciary, but no agreement was reached in respect of the said appointment.
On or about the 21st April, 2006, the President announc-ed that he had appointed the Chief Justice, Justice Carl Singh to act as Chancellor of the Judiciary.
Since the 21st April, 2005, there has been no reported meeting between the Presi-dent and the Leader of the Opposition with a view to appointing someone to the Office of Chancellor of the Judiciary. Since that time the office of Chief Justice has been and continues to be held by the same person who also holds the office of Chancellor (ag.)
McKay deposes that under Section 66 of the High Court Act, Chap. 3:02 the Chief Justice is responsible for the distribution of the business before the Court among the judges thereof, and may assign any judicial duty to any judges or judges.
The Chancellor is also responsible for the distribution of the business of the Court of Appeal and the selection of Judges who would sit on any particular appeal. In addition the Chancellor has the power under Article 130 of the Constitution to request a puisne judge of the High Court to sit as an additional Justice of Appeal.
He says that in recent cases in the Court of Appeal, the Chief Justice had selected puisne judges of the High Court to sit as additional Justices of Appeal notwithstanding that the three permanent Justices of Appeal were all available to sit.
Mc Kay also notes that under Article 198 of the Constitution the Judicial Service Commission consists of the Chancellor, the Chief Justice, Chairman of the Public Service Commission and others. The Chairman of that commission is the Chancellor of the Judiciary. He submitted that by reason of the offices of Chancellor and Chief Justice being vested in the same person the Commission is rendered dysfunctional and unconstitutional.
Mc Kay also submits that the Constitution intended that there should be two separate persons holding the two offices of Chancellor and Chief Justice.
Mc Kay further deposes that in May 2005 the Presi-dent announced that he had established a search committee to identify suitable candidates to fill the office of Chief Justice. The President did not identify the members of that Committee, nor has any further information been issued concerning the existence or work of that Com-mittee. He also says that he was informed by Corbin that he was not consulted on the appointment of the "search" committee and that to the best of his knowledge, neither was the Judicial Service Commission.