More than a year after the tenure of the last Judicial Service Commission expired, government remains silent on when a new one will be reconstituted.
The life of the last JSC expired on 30th September 2017.
Minister of State Joseph Harmon has repeatedly said that the matter has the attention of Cabinet but he has refrained from giving a definitive timeframe in which members of the Commission would be sworn in.
In late September, he had said that the reconstitution of the JSC was “receiving active consideration.” He went on to point out that only recently were some persons who will serve on the Commission appointed, including the Chairman of the Public Service Commission. He suggested at the time that the JSC would be in place “very shortly.”
When asked about it again earlier this month, Harmon said that it is receiving the attention of the government. He was asked what had caused the delay and when the new commissioners will be taking the oath of office. Harmon responded that when the reconstitution is “ready for public disclosure, I will do so.”
The Constitution provides for the establishment of a JSC, which is to comprise the Chancellor, who is the chairman, the Chief Justice, the Chairman of the Public Service Commission and such other members appointed in accordance with provisions listed in Section 2 of Article 198.
It states “the appointed members shall be appointed by the President, acting after consultation with the Minority Leader, as follows, that is to say – (a) one from among persons who hold or have held office as a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or a court having jurisdiction in appeals from any such court; and (b) not less than one and not more than two from among persons who are not attorneys-at-law in active practice, after the President has also consulted such bodies as appear to him represent attorneys-at-law in Guyana: Provided that a person shall be disqualified for appointment as a member of the Commission if he is a public officer.”
According to Article 199 of the Constitution, the JSC has the power to make appointments of judicial and legal officers and to remove and to exercise disciplinary control over persons holding or acting in such offices. Such persons include the office of the Commissioner of Title, Magistrates, the Director of Public Prosecutions, the Deputy Director of Public Prosecutions, the Registrar of the High Court, the Deputy Registrar of the High Court, the Registrar of Deeds, the Deputy Registrar of Deeds and such offices connected with the courts of Guyana, and appointments for which legal qualifications are required, as may be prescribed by Parliament.
The JSC also plays a critical role in the selection of judges.
Article 128(2) 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.”
Attorney Anil Nandlall has publicly criticised government’s failure to reconstitute the Commission. In an interview earlier this month, he asserted that this failure is part of an attempt to undermine and erode the integrity of the body. He called on the public to speak out to protect it and other institutions from political abuse.
Nandlall, who has been very outspoken about the failure to reconstitute the JSC, has accused the David Granger administration of undermining the constitutional commissions by failing to swear in members in a timely fashion, thereby leaving them non-functional.
“When these constitutional checks and balances are not functional, the way is paved for executive excesses and abuse,” Nandlall recently told this newspaper before lamenting the fact that these oversights do not attract condemnation from civil society. “Perhaps, it is because there is no civil society anymore… The sad truth is these are not political matters. These institutions exist for the protection of every citizen and for the public good. It is, therefore, the responsibility of every citizen to protect them from political abuse,” he emphasised.
Some in the legal arena say that the delay in reconstituting the JSC is deliberate so as to pave the way for a possible shake up of the hierarchy of the judiciary. At the moment, President Granger and Opposition Leader Bharrat Jagdeo are at an impasse with respect to the appointment of a substantive Chancellor and Chief Justice. The president had indicated his choices of Chief Justice of Belize Kenneth Benjamin for Chancellor of the Judiciary and the present acting Chancellor Yonette Cummings-Edwards for the Chief Justice position.
Minister of Finance Winston Jordan, in his budget presentation on November 25, had said that in 2019, government plans to support the judiciary by appointing more magistrates and judges to support collective efforts to reduce the backlog of cases in the courts.
With no JSC in place, this will not be possible.
