Amidst views that vacancies for judges should be advertised, former Chancellor of the Judiciary, retired Justice Cecil Kennard while expressing disagreement, says that it should be adopted only if capable persons cannot be found locally.
“I don’t agree with that…because we (Judicial Service Commission) would know the people who are capable and if people are interested they would get in touch with the Head of the Judiciary whether you are living abroad or not”, Justice Kennard posited during an interview with the Sunday Stabroek. The retired judge served as head of the Judicial Service Commission which appoints judges.
During this year, two persons with legal expertise who resided abroad were appointed as judges by President David Granger who acted on the advice of the JSC. Questions have now been raised as to what propelled the appointment of overseas-based persons, whether there were locals considered and if so what caused them not to be chosen and whether it should be publicised that vacancies exist in various parts of the judiciary. Publicising the vacancies is seen as aiding in transparency and equality of opportunity.
Justice Kennard when asked if he felt that it was a good idea to advertise for such a post particularly given the fact that this occurs at the level of the Caribbean Court of Justice (CCJ), did not hesitate to voice his opposition. The Regional Judicial and Legal Services Commission recently invited applicants for the position of a CCJ judge. The Commission is constituted under the agreement establishing the CCJ, which is Guyana’s final court.
He made the point that the members of the JSC have the ability to capably choose persons given that they are familiar with the attorneys practising here. He said that during his tenure on the commission, advertising was never done.
“I don’t believe in advertising for judges. In the colonial days they never did that why we should change all of a sudden?”, he questioned before adding that if a person is interested in being appointed, the JSC will do its own background checks. If the tendency now is to advertise we cannot quarrel with them…if we don’t have capable people here then you can advertise but over the years we have had capable people and they were selected.
Justice Kennard was adamant while speaking to the Sunday Stabroek that public advertising must be a last resort. “Look within your jurisdiction…approach them (lawyers) which I have done …and if you don’t have people who are interested then you search and do advertising but I don’t believe it (advertising) in necessary. In the first instance see what you have here”, he said while adding that if no capable persons are found locally then the post can be advertised.
Article 128(1) of the Constitution 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) states that this shall be done if the office of any judge is vacant or any such judge is for any reason unable to perform his duties or any such judge is acting Chancellor of Chief Justice or a Puisne Judge is acting as a Justice of Appeal or if the Chancellor advises the President that the state of business of the Court of Appeal of High Court requires it, “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.”
Former two-term Speaker of the National Assembly, Ralph Ramkarran while noting that he never expressed any objection to advertising, noted that where there are locally qualified people they should be appointed without advertisement outside Guyana.
He pointed out that Jamaica, Trinidad and Barbados don’t advertise for such vacancies outside of their countries.
In 2016 Ramkarran defended the JSC against apparent interference by government.
”It is the JSC which must decide on the issue of advertisement, not the AG or the President. That’s all that I was saying”, he said.
Ramkarran at the time had upbraided Attorney General Basil Williams SC for stating President David Granger had discretion in appointing judges.
In a column titled `On the warpath against the Constitution’ published on November 20, 2016, he explained that the practices of the JSC in the conduct of its business were borrowed from the judicial authorities in England. As in England, the commission had “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 had indicated in a meeting with senior counsel in 2015 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 had declared.
He noted that the AG 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 stated 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”.
With regards to following in the footsteps of the Regional Judicial and Legal Services Commission, Ramkarran posited that the CCJ advertises in the Caribbean because the “Caribbean countries are members of the CCJ and Caribbean citizens are entitled to apply”.
