President David Granger has no power to instruct the Judicial Service Commission (JSC) since that body regulates its own procedure and cannot be dictated to or second-guessed by anyone, including the President, and is answerable only to a court.
This is the position held by Senior Counsel and former Speaker of the National Assembly Ralph Ramkarran as he admonished Legal Affairs Minister and Attorney General, Basil Williams, over his pronouncements recently on the President’s appointment of judges.
People’s Progressive Party General Secretary, Clement Rohee, had recently urged President Granger to appoint the judges that had been nominated by the JSC but according to Attorney General Williams: “In the case of the said recommendations, they were not triggered by any public advertisement of vacancies in the office of judges and inviting applications for appointments thereto. Under the APNU/AFC Government the days of handpicking and secret overtures to fill vacancies in the office of judges are over.”
Ramkarran, in admonishing the Attorney General, has surmised that “this astonishing public admonishment of the JSC and public instructions to a constitutional body as to how it must perform its functions, based on President Granger’s view when he was Leader of the Opposition that vacancies should be advertised, has never, ever occurred in Guyana, in the worst of times.”
According to Ramkarran, “President Granger, as Leader of the Opposition or President may have a view on the matter, but he has no power to instruct the JSC.”
According to the former Speaker: “The practices the JSC in the conduct of its business from time immemorial were borrowed from the judicial authorities in England… As in England, the JSC has always privately and informally invited individual lawyers in private practice or in the service of the State, who they believe are qualified to sit as judges, to apply.”
He noted that in Guyana judges are usually appointed to the Court of Appeal from among senior judges of the High Court or, on rare occasions, from among lawyers in private practice who are invited by the JSC to apply.
Ramkarran is adamant that there is no law, rule or practice which requires the invitation of applications for judgeships either in the High Court or the Court of Appeal by way of public advertisement, even though the Chancellor indicated in a meeting with Senior Counsel during last year that he will recommend to the JSC
that, where appropriate, necessary and likely to be helpful, public advertisements will be utilised to invite applications for judgeships.
“The JSC regulates its own procedure and cannot be dictated to or second guessed by anyone, including the President… The JSC is answerable only to a court.”
Williams, during the course of the past week in response to Rohee said “The President must have a higher duty to ensure that the judges he appoints are fit and proper, and were selected and recommended after a transparent process.”
He also attributed to the President the responsibilities of “ascertaining the qualifications, suitability, experience, expertise, integrity and absence of nepotism among other considerations.”
According to Ramkarran, “the AG seeks to confer on the President an obligation to second-guess the JSC which the Constitution does not.”
He has since surmised that this “is a public shredding of the Constitution, which needs urgent clarification by the President or Prime Minister… A statement in the National Assembly would suffice. Otherwise the public pronouncements of the AG would be taken as the official policy of the Government.”
According to Ramkarran, in 2001 the authority of the JSC was strengthened and the discretion of the President was removed by the substitution of “shall” for “may.”
He notes that Article 128(1) of the Constitution of Guyana now provides that Judges other than the Chancellor and Chief Justice are appointed by the President “who shall act in accordance with the advice of the Judicial Service Commission.”
Article 128(2) now provides that “the President shall act in accordance with the advice of the Judicial Service Commission and appoint a person to act in the office of Justice of Appeal or Puisne Judge, as the case may be.”
These amendments were based on the recommendations of the Constitution Reform Commission (CRC) in 2000, Ramkarran recalled. (Guyana Times)