President Donald Ramotar is already engaged in consultations with the opposition in respect to several of the service commissions whose lives have come to an end, according to Legal Affairs Minister Anil Nandlall who says that this process should be completed shortly.
When approached recently about comments made by Attorney Christopher Ram about the failure of the Opposition Leader and the Speaker of the National Assembly to ensure that the Judicial Service Commission (JSC) had the required number of members, Nandlall opted not to say much about that particular commission.
He stated that the media must exercise care in what is published. He went on to say that the terms of several of the service commissions have expired. Some members of these commissions are appointed through a parliamentary process and some members are appointed by the President after consulting with the Leader of the Opposition, he said. However, it appears that the JSC had functioned for a significant time without a full complement of members, calling into question whether it was properly constituted. The matter was brought to the fore recently when questions were raised about the manner of the appointment of Justice of Appeal Rabi Sukul.
According to Nandlall, the government does not control the Parliament and therefore does not determine anymore the parliamentary agenda.
This, he said, is largely controlled by the opposition and the responsibility for the failure of the National Assembly to initiate the relevant process, which could produce members of those commissions, must be placed squarely at the doorstep of the opposition.
“In so far as the President can make appointments after consultation with the Opposition Leader to these commissions that process has already begun and hopefully will be concluded shortly,” he said adding that the appointments cannot be made without those consultations. He said that the three-man composition of the JSC was only for a period of time as previously it had the full complement in accordance with what was set out in the law.
He made the point that he did not want to single out the JSC but rather preferred to make overall comments that will cover all the service commissions.
According to Nandlall, under the provisions of the constitution there are three ex-officio members namely the Chancellor, the Chief Justice and the Chairman of the Public Service Commission (PSC). He said that at the moment the JSC is not functioning.
The National Assembly controlled by the opposition did not embark on a course of action which would have produced the other two members. He said that the minimum number of members is five while the maximum is six.
“The opposition has to concentrate on that which they are required to do under the constitution and stop attempting to undertake responsibilities that they do not have and which reside with the executive,” he said.
Ram had commented on the composition of the JSC following last month’s disbarment of Court of Appeal Judge, Justice Sukul by the England and Wales Bar Council for drafting false grounds of appeal in a UK case.
Justice Sukul has since resigned from the Court of Appeal and has since appealed his disbarment.
Ram on his blog at chrisram.net had said that while the JSC has three ex-officio members: the Chancellor, the Chief Justice and the Chairman of the Public Service Commission it could have up to three other members after consultations between the President and the Speaker of the National Assembly and the Leader of the Opposition but these positions have not been filled.
He said that this means that the JSC as currently constituted comprises only the ex officio legal officers (Justice Carl Singh and Justice Ian Chang) and Carvil Duncan, “a PPP appointee to chair that other dysfunctional body called the Public Service Commission.”
Ram said that Speaker of the National Assembly Raphael Trotman seemed not to have been aware of this process of consultation and this reflects poorly on him and the Chancellor. He added no appointment to the JSC arose out of consultations with Opposition Leader David Granger. Ram said this situation raises the question as to whether the JSC could and should have acted without its appointed members, including making such an important decision as appointing a fourth judge (Justice Sukul) of the Court of Appeal.
Despite efforts, Stabroek News was unable to get a comment on the issue from the opposition camp. Though Trotman had responded to Ram’s comments in a press release he could also not be reached for comment on how and when consultations will be initiated
Trotman in his release said that the National Assembly had never played a role in the judicial appointments since the reform of the constitution which paved the way for this.
He said it must be understood that there is no involvement of the Speaker of the National Assembly in the process of making the appointments.
He explained that Article 198 (b) of the Constitution requires the National Assembly to “meaningfully” consult bodies that appear to represent Attorneys-at-Law and signify its choice to the President. Once the process is completed, he added, the Clerk of the National Assembly communicates the decisions to the President. He further noted that the usual manner in which the National Assembly makes recommendations of this nature is that it responds when the appropriate body makes requests of it on occasions when vacancies arise.
Since the introduction of Article 119C, as part of the constitutional reforms of 2001, Trotman said, “there has been no request made of the National Assembly to identify candidates for the Judicial Service Commission; nevertheless the National Assembly is ready, willing and able to do its duty when required.”
According to Trotman, the Committee of Appointments of the National Assembly does this process of consultations and nominations. He said this Committee is a bipartisan Standing Committee that is established by Article 119C of the Constitution and Standing Order 84, and has a specific responsibility for “…initiating or otherwise taking such actions or addressing such matters as may be entrusted to the Committee by the National Assembly in respect of functions required to be discharged by the National Assembly under the Constitution in relation to the appointment of a member for a Committee established under the Constitu-tion.”
Trotman said too that the Committee reports to the National Assembly, which, once satisfied, adopts the report of the Committee. At present, he said, the Committee is working assiduously to fulfil its mandate of identifying the members of the various constitutional commissions that have requested that members be identified.
On February 25, 2014, the Guyana Bar Association called for the method by which judges are appointed to be reformed.
In its statement, the GBA said that judicial appointments should be made in conditions of transparency, consultation and due diligence.
“When vacancies arise in the magistracy and higher courts, they should be advertised so that the widest possible pool of candidates can apply. They must all be fairly considered based on merit. Appropriate agencies and bodies should be consulted before appointments are made.
“This is not currently part of the written rules of the JSC, but it should become so along with all other safeguards and measures aimed at transparency and accountability,” the GBA said.
It said that like the rest of the country, the GBA was deeply concerned that a judge of the Court of Appeal, who until his appointment in July last year, practised as a Barrister in the United Kingdom, had been disbarred.
“We acknowledge that the Chancellor of the Judiciary, as Chairman of the Judicial Service Commission, immediately demanded his resignation. That is not the end of the matter; there are many important questions that ought to be answered”, the GBA contended.
The GBA said that up to the time of Justice Sukul’s appointment, as the principal body representative of lawyers in Guyana, it had not been consulted since the term of Bryn Pollard, SC on the JSC ended several years ago.
“We believe then as now that the JSC was not properly constituted. We have raised this matter formally with the National Assembly already. Further we have complained previously that the JSC makes judicial appointments without any general consultation with the Bar. This should become an entrenched requirement,” the GBA argued.
The GBA said that another matter that had to be addressed was what considerations were brought to bear by the JSC in the process of identifying persons to fill judicial office.
