Wednesday, January 29, 2020

Court to Rule on Jurisdiction Arguments in Gambia Bar case


By Yankuba Jallow

The High Court is to rule on the case involving the Gambia Bar Association (GBA) and the Judicial Service Commission (JSC) on the appointment of four High Court Judges.

The two parties in this matter argued on the jurisdiction of the High Court to hear the matter and orders of certiorari. The applicants (GBA) Counsel Yassin Senghor countered the submission of the first Respondent (JSC) who submitted that Section 148 of the Constitution gives JSC the mandate to act on its own without being subjected to any authority or person. She argued that the Court should be guided by Section 231(3) of the Constitution which gives the court the jurisdiction to determine whether JSC has performed its function in accordance with the Constitution.

She contended that the matter before the court is for the court to determine whether JSC has performed its function in accordance with the Constitution and other laws.

She further contended that in considering the jurisdiction of the High Court to grant the order of Certiorari in addition to Section 133 of the Constitution, the court shall consider section 16(2) of Laws of England Application Act which she said expanded what is provided in the Constitution to grant the orders of certiorari and also referred the court to the Supreme Court Practice 1985.

She submitted that JSC is charge to effect public duty and its functions are spelt out in Sections 146 and 147 of the Constitution where it can be clearly drawn that JSC has an important role to play and which all of those functions are in the services of the public.

“JSC is a body exercising public duty, then it is subjected to the supervisory jurisdiction of the High Court” she submitted. She converse her argument citing many authorities both local and extinct as well as books stating that the power of the High Court to grant the orders of certiorari are very high and those powers can be exercised not only for adjudicating bodies but also for that of administrative bodies who exercise public function.

She distinguished the case of the Attorney General and Pap Che Yasin Secka arguing that the case is diferent. She said the fact of that case was that the court held that Commission of Enquiry has the same powers as the High Court so it lacks jurisdiction to hear matter related to the Commission.

In her objection, Counsel Ida Drammeh for the first Respondent altercate that the submissions of the applicants is contrary to the provisions of the 1997 Constitution and it is not tenable. She dissented saying the cited authorities are persuasive and that they ignored provisions of the Constitution particularly Sections 4 and 132.

She defended that the Constitution cannot be interpreted except in accordance with the plain language that has been used in it.

“No court has the power to throw away the plain provision of the Constitution by referring to previous judicial decision” she argued. She said that where a plain statute conflicts with a previous judicial decision the statute prevails.

She contended the court cannot refer to persuasive cases leaving local cases such as UDP v Attorney General 1997-2001 Gambia Law Report. In her final argument, she said Section 16(2) of the Laws of England Application Act is in conflict with Section 133 of the Constitution and in determining the argument she said the Constitution will supersede any law inconsistent with it.

Upon hearing the long argument the trial judge Justice Aminata Saho-Ceesay adjourned the matter till May 18, 2017 at 9:00am for ruling.


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