Senior Counsel Ralph Ramkarran has accused Attorney General Basil Williams of “shredding the constitution” by stating that President David Granger has discretion in deciding whether to appoint judges recommended by the Judicial Service Commission (JSC).
In his column in yesterday’s Sunday Stabroek, Ramkarran adverted to a November 18 letter by Williams in the Stabroek News where he responded to calls by the PPP/C for the President to act on the recommendations by the JSC for appointment of judges.
Williams said in his letter: “Suffice it to say that the Constitution does not impose a time line on the President to treat with any such recommendation by the JSC and for good reason.
“The President must have a higher and perpetual retainer in ensuring that the Judges he appoints are fit and proper, and were selected and recommended after a transparent process”.
This argument was rebuffed by Ramkarran who pointed out that in 2001 the authority of the JSC had been strengthened and the discretion of the President in appointments was removed by the substituting of the word “shall” for “may”.
Ramkarran pointed out that Article 128(1) of the Constitution 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) also 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.”
Ramkarran, a former two-term Speaker of the National Assembly, pointed out that on 10 October, 2001, the JSC recommended the appointment of former YSM (the PNC’s youth arm) official James Bovell-Drakes as a judge. He was not appointed. On August 12, 2001, Ramkarran noted that the Guyana Bar Association wrote to Dr Roger Luncheon, Head of the Presidential Secretariat and advised him that “Article 128 imposes a mandatory constitutional duty on His Excellency the President to appoint the person whom the Judicial Service Commission has advised, to the office of a High Court Judge.” Legal proceedings were filed by Bovell-Drakes against the government but he was appointed before the case was concluded, Ramkarran pointed out.
He also cited a much earlier case where the JSC recommended the appointment of prominent lawyer Miles Fitzpatrick as an acting judge in the early 1970s.
“Mr Fitzpatrick then turned up at State House on the appointed day to be sworn in by the then President, Arthur Chung. The President failed to appear, in his own house. The swearing-in was aborted and Mr Fitzpatrick was never appointed”, Ramkarran stated.
He added that Williams also attributed to the President the responsibilities of “ascertaining the qualifications, suitability, experience, expertise, integrity and absence of nepotism among other considerations.” Further, Williams said that for justices of the Court of Appeal “the work ethic, the number of judgments written and whether within the statutory time limit would be taken into account.”
Said Ramkarran “The AG seeks to confer on the President an obligation to second guess the JSC which the Constitution does not. 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”.
Ramkarran, who titled his column `On the warpath against the Constitution’ said that the practices of the JSC in the conduct of its business 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 to apply for judgeship.
He argued 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 would recommend to the JSC that, where appropriate, necessary and likely to be helpful, public advertisements would be utilized 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”, Ramkarran declared.
Ramkarran noted that the AG further posited that : “In the case of the said recommendations (by the JSC), 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 said 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. 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”.
“Article 128 imposes a mandatory constitutional duty on the President to appoint the person whom the Judicial Service Commission has advised, to the office of a High Court Judge. The language of Article 128 is in the imperative mood”, Ramkarran pointed out.
The AG had also stated in his letter: “The alleged shortage of judges was not occasioned under the APNU+AFC government which inherited excessive delays in both the civil and criminal jurisdictions and the crippling backlog of cases in all courts.
“The question therefore is why didn’t the PPP/C government make those appointments while in office?
“Why now appear to have the acuity of a Rip Van Winkle recently awakened from his slumber?
“The PPP/C is clearly shedding crocodile tears!”
