As a consequence of the ruling, the motion asking for several orders, including an order of certiorari to quash the appointments of Justices of Appeal Nandram Kissoon, Carl Singh, Ian Chang and Claudette Singh, will be heard on July 31, 2002.

The plaintiffs, who are on Death Row at the Georgetown Prisons, had filed their originating summons on 4/11/2000 under Article 128 of the Constitution.

According to Judge Legall, “Article 128 (1) states, ‘The Judges, other than the Chancellor and the Chief Justice, shall be appointed by the President, acting in accordance with the advice of the Judicial Service Commission.”

Justice Legall ruled, “ The plaintiffs, who have an appeal pending in the Court of Appeal, claim that these Justices of Appeal were not appointed in accordance with Article 128 of the Constitution, in that the President in making the appointment, did not in accordance with the advice of the Judicial Service Commission, which, according to a member of the Commission, had advised that Justices Kissoon, Chang and Carl Singh be appointed to act as Justices of Appeal, and not to be appointed to the substantive position as was done by the President.

“Moreover, according to the plaintiffs, no advice was tendered to the President by the Commission in relation to the appointment of Claudette Singh.”

Continuing, Justice Legall said that the main argument of the plaintiffs who have an appeal pending in the Court of Appeal which comprises at present of four Justices of Appeal, including three of those mentioned above, is that the justices were not lawfully appointed and therefore they cannot lawfully sit and hear the plaintiffs’ appeal.

A further claim of the plaintiffs, said the judge, is that, contrary to the provisions of Article 128, these Justices of Appeal are the creation of the President, a political figure, because he did not act on the advice of the Commission; and therefore they cannot be considered to be “independent and impartial” as is required by Article 144 (8) of the Constitution.

The judge, however, pointed out that before the substantive issue as to whether or not the appointments were lawful came up for hearing, learned counsel for the defendants (the President and the Attorney General) made preliminary points in written submissions.

The judge made it quite clear that at this stage he was not called upon to decide on the substantive issues above, because full arguments have not been addressed to the Court on them.

Justice Legall explained that his decision was on the preliminary points or points in limine.

Delivering that decision the judge said, “The first point in limine is that the plaintiffs’ application is not in accordance with the procedure laid down in section 3 of the Fundamental Rights (Practice and Procedure) Act No. 13/1988, which states that applications for constitutional redress may be made by originating motion.”

He added, “The submission on this issue is not quite clear to me, but the Court presumes that the submission is that since section 3 speaks of originating motion, and the applicant came to Court by way of originating notice of motion, the Court has no jurisdiction to hear the matter. I see no difference in substance between originating motion and originating notice of motion.

“Moreover, section 3 does not make it mandatory that the application must be by originating motion. I therefore see no merit in this submission. There is similarly, in my view, no merit in the second preliminary submission that a nisi order has not been applied for. Although the motion does not use the word ‘nisi’, I am of the view that the wording of clause 1 of the motion clearly shows that a nisi order is claimed or intended.”

The judge went on to point out that learned counsel for the defendants further submitted in limine that prerogative writs were applicable to judicial and quasi judicial acts and were never applied to purely “administrative or ministerial acts”.

Justice Legall also pointed out that the defendants had submitted that the plaintiffs have no locus standi to bring the proceedings.

In answering that submission, he referred to Merabux J. in the Belizean case of Mohamed v. A.G. No. 73/1999 when he said:

“The modern view of locus standi expouses Lord Denning’s philosophy that whenever a citizen raises a question of unlawful activity in a government department, the citizen ought to be heard provided he is not a busybody.”

Justice Legall concluded, “Applying the views of Merabux J, and the views of several other Courts on the subject, to the evidence in the affidavits, I have no doubt that the plaintiffs, who are clearly not busybodies, have locus standi to bring these proceedings.

“For the above reasons, I rule that the Court has jurisdiction to hear the substantive issues raised in the motion in this matter and I set the 31st July 2002 for the hearing.”