On the 17th of January 2018, Dr Arif Bulkan was appointed by President David Granger as a temporary Justice of Appeal. The life of the Judicial Service Commission (JSC) expired on the 30th September 2017.
Article 128 (1) governs the appointment of all judges other than the Chancellor and the Chief Justice. The article provides for judges to be appointed whether temporary, permanent or acting, by the President, who must act in accordance with the advice of the JSC. Article 128 (1) provides that, “The Judges, other than the Chancellor and the Chief Justice, shall be appointed by the President who shall act in accordance with the advice of the Judicial Service Commission.”
There was no Judicial Service Commission in force to have advised the President in respect of Dr Bulkan’s appointment. The President has no unilateral power of appointment over these judges. The word ‘shall’ in article 128 (1) is mandatory. Therefore, Dr Bulkan’s appointment is unconstitutional and unlawful.
Again, the Attorney General seems to have advised the President poorly. I await the voices of the legal luminaries.