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MAJURO, Marshall Islands (January 7, 2000 – The Marshall Islands Journal)---High Court Judge H. Dee Johnson refused to swear in Johnsay Riklon as a new judge of the High Court, saying that Riklon was not properly approved by the Cabinet and the Judicial Service Commission.

Johnson said any judge considered for appointment by the Cabinet to the High Court or Supreme Court must first be recommended by the Judicial Service Commission (JSC). But, he said, there was no properly held meeting of the JSC, so the Cabinet did not have authority to appoint Riklon to the High Court.

Riklon was appointed by the outgoing Cabinet of President Imata Kabua. He presented his credentials to the High Court, after which Johnson said "the High Court must decline to accept Mr. Riklon’s credentials, and decline to administer the oath of office or assign cases to Mr. Riklon."

The problem centered on the fact that the proper members did not meet on the JSC to make the recommendation to Cabinet, the Judge said.

The Constitution names the High Court Chief Justice as the JSC chairman, but since there is no CJ, residential advisor David Lowe has been named the temporary JSC chair.

The second member of the JSC is the Attorney General or, "if for any reason the Attorney General is unable to act, the Chairman of the Public Service Commission," the Constitution says.

There was no AG last week when Riklon was considered by the JSC. In August, PSC had named Filimon Manoni as acting Attorney General, a decision that was to remain in effect "until further notice." Johnson said that as far as he knows, Manoni was still the acting AG when Riklon was considered by the JSC.

The JSC minutes show that Atbi Riklon was the AG member of the JSC. "Whether Mr. Manoni’s appointment as Acting Attorney General was superceded by Mr. Atbi Riklon’s return to his duties as Assistant Attorney General is an issue to be determined by the PSC," Johnson said. But if Manoni was still acting AG, the duties of JSC members cannot be delegated except as provided for in the Constitution.

Atbi Riklon, who is Johnsay’s brother, "quite correctly" abstained from consideration of Johnsay’s candidacy for the High Court.

"The Constitution unambiguously provides that when the AG is unable to act, the AG is automatically replaced on the JSC by the Chairman of the Public Service Commission," Johnson said.

"This court interprets the Constitution as meaning that if a member of the JSC is disabled from participating, for any reason, even if that reason is of his own choosing, then the required quorum of three members is not present for a valid meeting."

Because the Constitution provides that there must be an actual meeting of the JSC to act, "the slot on the JSC allocated by the Constitution to the AG would have to have been filled by either Mr. Manoni, if he were the Acting AG at the time of the meeting, or by the Chairman of the PSC, due to Mr. Atbi Riklon’s recusal," the judge ruled.

Neither Manoni or PSC chairman Kinja Andrike were at the meeting. Thus, "there was no quorum… and no valid business could be conducted."

Johnson said that "regretfully" he could not administer the oath of office to Riklon until evidence demonstrates that… the Constitution has been compiled with or until the failing has been cured."

The Marshall Islands Journal, Box 14, Majuro, Marshall Islands 96960 E-mail: journal@ntamar.com  Subscriptions (weekly): 1 year US $87.00; international $213.00 (air mail).

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