By Abubacarr

Copyright standard

Dear Editor,The statement by the Speaker of the National Assembly that a judicial pay rise is unconstitutional is legally and factually flawed. Also, it does seem that an overwhelming majority of parliamentarian also shared this same opinion of the Speaker and they too are sadly wrong.1. Constitutional supremacy (Section 2 & Section 151). Section 2 of the 1997 Constitution affirms that:“This Constitution is the supreme law of The Gambia and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.”Thus, the National Assembly cannot, by failed legislation or political assertion, override powers expressly conferred by the Constitution.Section 151 further provides that the “salaries and allowances payable to the holders of the offices to which this section applies are a charge on the Consolidated Fund.”Judges’ remuneration, once properly recommended and appropriated, is constitutionally guaranteed. Parliamentary approval relates only to the appropriation of funds, not to the validity of the increase itself.2. The role of the Judicial Service Commission (Section 147)Section 147(1)(b) empowers the Judicial Service Commission (JSC) “to make recommendations as to the terms and conditions of service of judges and other judicial officers and staff of the courts.”This is a direct constitutional mandate. The Speaker cannot usurp this role by asserting that increases are unconstitutional by failure of a judicial bill to pass at the National Assembly.3. The failed Judicial Officers’ Remuneration Bill 2004 (Section 4):Much of the Speaker’s claim rests on the fact that the Judicial Officers (Remuneration and Other Entitlements) Bill, 2024 did not pass. However, the failure of that Bill does not extinguish the JSC’s constitutional authority under Section 147 of the 1997 Constitution.Crucially, even if the Bill had passed, it would not have provided for automatic pay rise as most people believe including members of parliament who are debating this bill. Section 4 of the Bill states:“The Commission shall (a) whenever government conducts public service pay review carry out an inquiry into the adequacy of the emoluments payable to judicial officers; and (b) submit a report on its findings to the President for approval within three months after the date of commencement of the inquiry.”This wording is clear: the Bill only required the Commission to inquire into adequacy and report to the President. It neither mandated nor guaranteed an automatic pay increase. Thus, Parliament’s rejection of the Bill cannot be mischaracterised as a constitutional bar to judicial pay adjustments.4. Mischaracterisation of “unconstitutionality”For any act to be unconstitutional, it must contravene an explicit provision of the Constitution. In this case:Section 147 empowers the JSC to recommend judicial terms and conditions and section 151 secures judicial pay as a charge on the Consolidated Fund. Furthermore section 2 upholds the Constitution’s supremacy over failed legislation.Therefore the statement of Speaker Jatta that the pay rise of judges is unconstitutional is baseless and of no legal merit.The Judicial Service Commission has a constitutional mandate to recommend pay increase to the executive regardless if a bill is passed or not as solidly privided for in section 147(1) of the 1997 constitution .Malville Robertson RobertsUK