Two justice ministry lawyers battling the Government in court over selections for high-ranking appointments have argued a special privilege for their case under constitutional grounds.

Parliamentary counsel K. Amani Lawrence, who works in the legislative drafting section of the Attorney-General’s Chambers, and Eugene Johnston, a Crown counsel who works in the civil advisory section, are pursuing a joint claim for a judicial review against several parties, launched two years ago.

They are challenging the Public Service Commission’s recommendation of Nalini Salick for the post of Chief Parliamentary Counsel and Shakira Dill-Francois as Solicitor-General.

Ms Lawrence complained that she was improperly passed over for the job of Chief Parliamentary Counsel in favour of a non-Bermudian — while Mr Johnston said he was blocked from applying for the role of Solicitor-General because of an incorrect description of the prerequisites for the job when it was advertised.

Judicial review proceedings over recruitment practices were also filed against the Minister of the Cabinet Office, the Head of Public Service, the Attorney-General and the Governor as well as the PSC.

Appearing today in a civil hearing of the Supreme Court before Puisne Judge Andrew Martin, Mr Johnston, arguing for both litigants, made a case for a protective cost order in the matter, saying that because of “sufficient, strong public interest, there is scope to achieve that”.

The order would shield the two, who are representing themselves, from footing the full legal costs of opposing counsel in the event that they lose the case.

Mr Johnston told the court there was “always a risk that costs will be held over the heads of challenging litigants — that threat might determine how they go about making decisions”.

While he said counsel for the defendants had claimed the case was “just a product of two enterprising lawyers who took on a constitutional argument in a personal complaint to achieve some procedural benefit”, Mr Johnston insisted their case had a constitutional character that warranted granting the protective cost order in the public interest.

He told Mr Justice Martin that, far from being a “clever ruse”, it amounted to “a constitutional case, and only a constitutional case”.

“We are saying that the recruitment process imposed by the executive on the commission implicitly violates the constitution.”

He added: “Without that argument, we do not have a case.”

Mr Johnston maintained that “the rules of the constitution are designed to protect public officers and the public from executive interference”.

He claimed the appointments had been made “unlawfully”, with an element of interference from the executive level.

Mr Johnston argued that, in the case of barristers and attorneys, “certain public officers require greater protection than others, or different protection”.

Ben Adamson, appearing for the PSC, argued that private grievances were being argued as a complex constitutional matter.

Paul Harshaw, defending the Minister of the Cabinet Office, the Head of the Public Service and the Attorney-General, said his side adopted Mr Adamson’s submissions in light of the protective cost order.

He limited his submission to disputing Mr Johnston’s call for an amendment, recognising a special category for lawyers above other public officers.

Mr Harshaw disputed Mr Johnston’s characterisation of barristers and lawyers as entitled to “greater protection than any other public officer”, adding that his argument was “writing into our constitution provisions which are not there”.

Richard Horseman, appearing on behalf of the Governor, told the court: “The applicants will be pleased to know that we’re doing all we can to reduce the costs.”

Mr Justice Martin noted the duration of the case and said the court was “conscious of its duty to get on”.

He reserved decision on the two points raised by Mr Johnston, and set tentative dates for a full hearing in court of December 16 through 18. Costs were also reserved.

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