There continues to be concern over President David Granger’s failure to act on a list of judicial nominees sent to him since May this year and former attorney-general Anil Nandlall has signalled his intention to approach the court for redress if the situation is not remedied in the near future.
When approached recently after the opening ceremony for a Justice Education Society (JES) seminar, Judicial Service Commission (JSC) Chairman and acting Chancellor of the Judiciary Justice Carl Singh declined to speak on the issue. “That’s not a subject that I would like to discuss because it’s unfinished business of the Judicial Service Commission,” he said.
Well-placed sources told Sunday Stabroek that the JSC summited its recommendations since May and was yet to receive a response from the President. This newspaper was told that it is being recommended that two High Court judges be sent to the Court of Appeal. Names have also been recommended for persons to replace them.
Sunday Stabroek was also informed that the two judges recommended for the Court of Appeal are very experienced and have performed satisfactorily during their time on the bench. One of the two chosen as replacements is a lawyer in private practice with a well-known law firm.
Since this issue was highlighted by the opposition PPP/C, the Ministry of Presidency has yet to explain the reason for the delay, although State Minister Joseph Harmon has said the President would act with “reasonable speed” on the appointment of judges recommended by the JSC.
Attorney-General Basil Williams, by way of a letter to the media, had responded to calls by the PPP/C for the President to act.
In his letter, which was published in the November 18 edition of Stabroek News, Williams had stressed that President was paying careful attention to his constitutional duty in the appointment of judges and made the point that he was not bound by a timeline.
“Suffice it to say that the constitution does not impose a timeline on the President to treat with any such recommendation by the JSC, and for good reason. 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,” Williams said.
He also noted that the recommendations 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, he added, the days of handpicking and secret overtures to fill vacancies in the office of judges are over. “The President would be remiss in his duty to the Guyanese people if he were to robotically appoint judges recommended by the JSC without first ascertaining the qualifications, suitability, experience, expertise, integrity and absence of nepotism, among other considerations,” he added.
Williams, however, did not indicate the President’s intended course of action.
Senior Counsel Ralph Ramkarran responded to the letter and accused Williams of “shredding the constitution” by stating that the president has discretion in deciding whether to appoint the judges that were recommended.
Ramkarran, in his weekly Conversation Tree column, 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.”
Nandlall had also added his voice and asserted that Granger had no excuse for the delay and should be acting swiftly on the matter.
Speaking to Sunday Stabroek recently, Nandlall said that unless the nominees are appointed within reasonable time, he will file a constitutional motion. Asked how much time he is willing to spare before he makes such a move, he responded, “Well, it is going to be after the budget. Certainly after the budget.”
Nandlall noted that the judiciary is a fundamental institution in any constitutional democracy. Judges, he said, drive the judiciary.
He said that under the PPP/C government, the complement of judges was increased from 12 to 20 because “we recognised that an increased number of judges will augment and enhance speed in the judicial system and will address the delays which have been afflicting cases.” He added that the constitution is very clear in that it reposes the power to recruit persons to be appointed as judges and to recommend to the president that these persons should be appointed.
Nandlall stressed that the President, having received those recommendations, must act. “A discretion once existed which was removed when the constitution was amended in 2001,” he said. In a letter penned recently in response to Williams, he noted that the recruitment of judges is the exclusive constitutional responsibility of the JSC. “The Constitution insulates the JSC from the dictates of the President or anyone else.
The Leader of the Opposition was therefore trespassing upon the constitutional domain of the JSC when he made that statement. It is for the JSC to determine whether it would advertise for judges or not. In any event, in Guyana, we have never advertised judicial vacancies,” he said.
Meanwhile, several persons in the legal fraternity have expressed disagreement with Williams’ pronouncement on the matter and indicated that the arguments advanced by both Nandlall and Ramkarran are more on point.
“The President has to act on the JSC recommendation or send [it] back to them… for reconsideration as happened with (Justice) James Bovell-Drakes,” one of the lawyers, who asked not to be named, said. While unable to remember offhand what exactly the constitutional provision says about the appointment of judicial nominees, one of the attorneys told this newspaper that the president has to either accept the nominations or refer them back to JSC almost immediately.
“Delay is not good for democracy and is against good governance and the rule of law and certainly to the detriment of the judiciary and the wider population that it serves because the backlog is increasing and people’s cases are taking too long to come up for hearing,” the attorney pointed out.
Stabroek News was told that the matter was particularly dire at the Court of Appeal and that the appointment of two additional judges would be welcomed.
