Dear Editor,
As the judiciary continues to haemorrhage because of judicial vacancies, and the consequent sloth which afflicts the machinery of justice continues to magnify, Attorney General Basil Williams continues his campaign in the press to defend and justify the President abdicating his responsibility to appoint persons as and to promote judges recommended by the Judicial Service Commission (JSC), as mandated by the constitution.
The AG’s latest epistle on the issue appeared in the Stabroek News on November 30, 2016. He commenced with the poignant statement that the APNU+AFC government was elected on a promise to the Guyanese, to “restore the rule of law”. I examined the joint manifesto 2015, of the APNU+AFC, but found no such promise. The promises that I found germane to the issues are as follows:
- a) “Address the delays in confirming the appointments of members to the Judiciary”(page 13)
- b) “Rationalize the positions of the Chief Justice and the Chancellor of the Judiciary” (page 13)
- c) “The establishment of a permanent constitutional court of three (3) judges” (page 14).
Halfway through its term in office, none of these promises have been fulfilled. On the contrary, we are witnessing an obstinate refusal to appoint judges in the face of critical judicial vacancies. The problem is exacerbated by the relentless efforts of the Attorney General to mislead the nation and presumably the President, by distorting and misinterpreting the simple language of the relevant provisions of the constitution, in his attempt to enlarge the powers of the president beyond the scope provided for and contemplated by the constitution and to justify the President’s failure to act upon the recommendations of the JSC. For the benefit of the public, I will set out the relevant portions of the constitution.
111(2) “Where by this Constitution the President is directed to exercise any function on the advice or recommendation of any person or authority, he or she ‘may’, in accordance with his or her own deliberate judgment, once refer any such advice or recommendation back for reconsideration by the person or authority concerned, and if that person or authority, having reconsidered the original advice or recommendation, as the case may be, the President ‘shall’ act in accordance therewith; but save aforesaid he or he ‘shall’ act in accordance with the original advice or recommendation.”
128(1) “The Judges, other than the Chancellor and the Chief Justice, ‘shall’ be appointed by the President who ‘shall’ act in accordance with the advice of the Judicial Service Commission.”
Any first year law student would know that, ‘shall’, in Articles 128(1) and 111(2) impose upon the President mandatory obligations. As regards Article 111(2), it will be observed that both ‘may’ and ‘shall’ are used. It is also equally clear that where ‘may’ is used, the President has a discretion and where ‘shall’ is used it is imperative and the President has no discretion. The cumulative effect of Articles 128(1) and 111(2) can be summarized thus: when the President receives a recommendation from the JSC for the first time he ‘may’ refer it back for reconsideration.
If that is done and the JSC reconsiders it and sends it back to the President, the President must act in accordance with the new recommendation. If the President does not send it back to the JSC for a reconsideration, then he must act in accordance with the original advice or recommendation of the JSC. One thing is certain, the constitution does not contemplate non-action from the President.
These mandatory obligations upon the President which Article 128(1) and 111(2) impose, were intentionally effected by the multi-partisan Constitutional Reform Commission in 1999-2001. These amendments enjoyed unanimous support in the National Assembly. In fact, the PNC played a major role, both in the CRC and in the National Assembly, in support of these changes. The 1980 Constitution which was amended conferred a discretion on the President to properly refuse to act upon the JSC’s advice and recommendation.
Thus, President Forbes Burnham refused to appoint Mr Miles Fitzpatrick as a judge in defiance of a recommendation of the JSC. The CRC intentionally recommended the change, in order to remove such a power from the President. This change received the unanimous support of the National Assembly. Messrs Haslyn Parris, Deryck Bernard and Winston Murray, all of whom played a pivotal role in the CRC, must be turning in their graves at how their efforts are now being spat on by their own Attorney General. Sadly, political loyalty has destroyed the revolutionary spirit of Dr Rupert Roopnaraine.
He played a significant role, as well, in this process. Today, he has become mute as his scholarly contributions are being desecrated by the uninitiated, who now advance the ludicrous proposition that Article 128 is ‘ultra-vires’ the constitution. To argue that an article of the constitution is ‘ultra-vires’ the constitution is the height of lunacy.
It is interesting how the Attorney General purports to justify the President’s failure or refusal to discharge positive mandatory obligations which the constitution devolve upon him, by clumsily arguing that an executive president cannot be compelled. One would recall the hue and cry which erupted when President Donald Ramotar withheld his assent from Bills passed by the joint opposition in the Tenth Parliament. In that instance, President Ramotar was exercising a power expressly conferred upon him by the constitution. In President Granger’s case, he is simply ignoring a constitutional mandate. Yet, not a word from those who were critical of President Ramotar, though he was acting constitutionally.
The legal truth is that the constitution is supreme and everyone and every organ is subservient to it. If the constitution issues a decree, it cannot be flouted by anyone or any organ, including the executive president.
If this state of affairs continues, legal proceedings will be launched to remedy the flagrant violations of the constitution. But this is not the only option to which we may resort. Article 180 of the constitution provides for a process to be activated in the National Assembly for the removal of the President for violating the constitution. Though this process may not succeed, it will be as embarrassing as it will be historical. The President will only have his Attorney General to blame.
Yours faithfully,
Mohabir Anil Nandlall, MP
