Dear Editor,
I write in relation to a letter published in the Stabroek News on Thursday, August 18, 2016 under the caption the ‘JSC has power to appoint the Deputy Registrar of Deeds’.
Editor I agree with the caption because it is the APNU+AFC government which made this possible. Among its first acts was the passage into law of legislation which restored the independence of constitutional bodies emasculated during the 23 years of PPP/C rule including the Judicial Service Commission (JSC).
However, Editor, independent commissions are not above the rule of law in Guyana. That the rules and decisions they make can be challenged in a court of law where they breach them or act excessively, is established law in Commonwealth jurisdictions including Guyana. Independent commissions are required to exercise their discretion judiciously, not whimsically or capriciously.
The power of the JSC to appoint Registrars and Deputy Registrars of the Deeds and Supreme Court Registries was not contemplated in the Westminster type constitution Guyana received on its Independence in 1966, and did not exist. This power also did not exist in the 1970, 1980 and the 1980 revised constitutions; the reason being that Guyana’s constitution is based on the doctrine of the separation of powers of the three arms of the state, to wit, the executive/government, legislature/ parliament and the judiciary.
The Deeds and the Supreme Court Registries were since independence part of the executive and not the judiciary. On the dawning of the 21st century a power struggle developed over whether the Chief Justice/Chancellor or the Registrar of the Supreme Court was in charge of the Supreme Court and Deeds Registries. In 2001 the constitution was amended quite inexplicably, and the power to appoint the Registrar and Deputy Registrar of the Supreme Court and Deeds Registries was removed from the Public Service Commission (PSC) to the JSC by the provisions of Article 199(3) of the Guyana Constitution.
The reason why the JSC was given the power to appoint the top two officers of the Deeds and Supreme Court Registries, while the PSC continues to appoint the rest of the staff in these Registries might suggest that the PSC is inferior to the JSC or that the persons appointed by the JSC are superior to their ‘underlings’ appointed by the PSC.
It thus appears that the constitutional engineering had resulted in the Chief Justice/Chancellor having control over the heads of these Registries, who may believe that having been appointed by the JSC, the latter had supervisory control over them, the rest of the staff and the business of the Registries and so blur the lines of governance. This is a serious intrusion and interference in the affairs of the executive/government by the judiciary and a breach of the doctrine of the separation of powers.
Under Article 199 (1) of the Guyana Constitution the power of the JSC is limited to appointing, removing and disciplining the Registrars and Deputy Registrars. This article cannot remove the Registries from the executive/government arm to the judiciary.
The powers of the Judicial Service Commission
The power of the JSC to appoint the Registrars and Deputy Registrars of the Supreme Court and the Deeds Registries did not exist in the 1966, 1970, 1980 and the 1980 revised constitutions.
The stellar cast of Attorneys General Sir Shridath Ramphal, Dr Mohamed Shahabuddeen and Mr Keith Massiah, did not bestow such a power recognising that it would offend the doctrine of the separation of powers, which according to the Privy Council’s decision in Hinds v R was a fundamental underpinning of the Westminster model constitution we received at Independence in 1966. In the 1966 and 1970 constitutions Article 94(3) provided: –
“This Article applies to the office of Magistrate and to such other offices…connected with the courts of Guyana or for appointments to which legal qualifications are required as may be prescribed by Parliament.”
In the 1980 constitution Article 199(3) included an additional office, to wit:-
“This Article applies to the office of the Commissioner of Title, Magistrate and to such other offices…connected with the courts of Guyana or for appointment to which legal qualifications are required as may be prescribed by Parliament.”
In the 1980 revised constitution Act 17 of 1984 inserted Articles 2A and 2B. It was not until 2001 by Act No 6 of 2001 that Article 199(3) was substituted and a new provision introduced for the Registrars and Deputy Registrars to be appointed by the JSC, namely:-
“This Article applies to the office of the Commissioner of Title, Magistrate, Director of Public Prosecutions, Deputy Director of Public Prosecutions, Registrar of the High Court, Deputy Registrar of the High Court, Registrar of Deeds, Deputy Registrar of Deeds and to such other offices…connected with the courts of Guyana or for appointment to which legal qualifications are required as may be prescribed by Parliament.”
This meant that from 1966 to 2001 the said Registrars and Deputy Registrars were appointed by the Public Service Commission. In the 1966, 1970 (Article 96) and 1980 constitution and 1980 revised constitution (Article 201) the relevant provisions read thus: –
“Subject to the provisions of this Constitution the power to make appointments to public offices and to remove and exercise disciplinary control over persons holding or acting in such offices shall vest in the Public Service Commission.”
Articles 96 (7) and 201 (7) of the said constitutions provided that the PSC did not appoint several categories of public officers including the DPP, Auditor-General, Permanent Secretaries, Secretary to Cabinet, inter alia, but did not include the said Registrars and Deputy Registrars.
It is therefore in 2001 that the Registrars and Deputy Registrars were transferred to the JSC by Article 199(3) of the constitution. From 1966 to 2001 the Supreme Court and Deeds Registries were part of the executive arm of the state and not the judiciary.
The question which arises however is whether the ‘Registrar of the High Court’ is the same person as the ‘Registrar of the Supreme Court’.
In Article 125 of the 1966 and 1970 constitutions the word ‘court’ means “any court of law in Guyana and shall be construed as including the Judicial Commit-tee”. In Article 232 of the 1980 constitution and 1980 revised constitution the word ‘court’ means “any court of law in Guyana.”
At no time did the definition of ‘court’ include the Supreme Court, Deeds or Land Registries.
Independence of the judiciary
In the 1966, 1970 and 1980 constitutions there was no equivalent to Article 122A of the 1980 revised constitution of 2001 speaking to the independence of the judiciary. Article 122A provides: –
(1) All courts and all persons presiding over the courts shall exercise their functions independently of the control and direction of any other person or authority and shall be free and independent from the political executive and any other form of direction and control.
(2) Subject to the provisions of articles 199 and 201 all courts shall be administratively autonomous and shall be funded by a direct charge upon the Consolidated Fund; and such courts shall operate in accordance with the principles of sound financial and administrative management.
It is contended that the provisions of this article did not include or speak to the aforementioned registries, which are not part of the judiciary.
It is further contended that Article 122 A (2) contemplates a court having a secretariat or its own registry to service it specifically, and the head can be described as the Registrar of the High Court not the Supreme Court, the latter being part the administration of government or executive like the Deeds and Land Registries.
That the Deeds Registry has at all material times from Independence in 1966 to the present been administered by the executive/government and not the judiciary is supported by the provision of section 7 (1) of the Deeds and Commercial Registries Authority Act 2013. To wit:
“The Functions of the Governing Board in addition to the functions under the laws referred to in section (4) are the functions relating to the Deeds Registry that were discharged by the Ministry responsible for the Public Service and the Public Service Commission on the date immediately preceding the appointment day…”
Additionally, section 7 (3) confirms that the minister with responsibility for the Deeds Registry is the Minister of Legal Affairs: –
“The Minister may give the Board general policy directives with respect to the discharge of its functions under this Act as he considers necessary and the Board shall give effect to the directives.”
Section 2 defines ‘Minister’ as meaning the Minister of Legal Affairs.
The Act establishes under section 3, the Deeds and Commercial Registries Authority as a corporate body with a governing Board.
It is clear that whatever policy directive is given by the Minister for the smooth and effective running of the Authority, the JSC could undermine this by simply inserting a Registrar and Deputy Registrar of its choice. This could only lead to anarchy. The Chancellor/JSC and the designated Minister cannot both administer the Deeds and Commercial Authority.
To reaffirm the commitment to the doctrine of the separation of powers and restore the independence of the registries would require the repeal of Article 199 (3).
Yours faithfully,
Basil Williams
Attorney General and
Minister of Legal Affairs
