Former Attorney General Anil Nandlall has lamented the continued non-functioning of the Judicial Service Commission (JSC) since September 2017, adverting to its importance in the proper functioning of the rule of law and the separation of powers.
In a statement yesterday, Nandlall said that embedded in the Guyana Constitution, is a series of checks and balances to minimize abuse of power, enshrine the doctrine of Separation of Powers and to promote a democratic ethos vital to good and accountable governance and the Rule of Law.
He noted that among these checks are the service commissions with the JSC being one such. He pointed out that the functions of the JSC as set out in Article 199 of the Constitution encompass the power to make appointments to the bench, to remove and to exercise disciplinary control over persons holding or acting in the following offices – Commissioner of Title, Magistrate, Director of Public Prosecutions, Deputy Director of Public Prosecutions, Registrar of the High Court, Deputy Registrar of the High Court, Registrar of Deeds and Deputy Registrar of Deeds and to such offices connected with the Courts or for appointment to which legal qualifications are required as may be assigned by Parliament.
Nandlall pointed out that the last JSC was appointed by President Donald Ramotar on the 11th day of September 2014. The tenure of this Commission, therefore, ended on the 12th day of September 2017 – over two years ago. No person has been appointed to the JSC since then so that none of the responsibilities which devolve upon the JSC have been performed.
“Despite the rantings of the Government and its apologists, there is no doubt that the life of the Executive, itself, expired on the 18th September 2019, consequent upon the passage of a No-Confidence Motion in the National Assembly on the 21st December 2018. It is equally clear that the Eleventh Parliament of Guyana has suffered the same fate. With an unconstitutional Executive, occupying the seat of Government by imposition, along with a Parliament whose tenure has expired, a JSC cannot be appointed until after the elections, as the Constitution requires the appointments to be made by the President with an input from the National Assembly. However, by virtue of the very Constitution, there is no President, neither is there a National Assembly.
“The Coalition Government has once again etched its name in the annals of notoriety, as being the only Government in the English-speaking Caribbean that served more than half of its legal term in Office, without appointing a JSC, when required to do so by the Constitution”, Nandlall declared.
He said that a clinical constitutional analysis of the governmental structure that currently exists in Guyana, leads to the conclusion that there is no lawful Executive, nor Legislature; “the only branch of Government which obtains is a Judiciary, which is presided over by an acting Chancellor and an acting Chief Justice, discharging the functions of those two Offices without the support, oversight or disciplinary powers of a JSC”.
In June this year, President of the Guyana Bar Association Teni Housty, underscored the importance of the JSC and assured that it is very much on the radar of the Association’s new Executive.
“The absence of a Judicial Service Commission has had a debilitating effect…on the process of the administration of justice in Guyana and it is particularly felt at the level of the Court of Appeal, where we only have three judges,” he said.
Those judges are Chancellor (ag) Yonette Cummings-Edwards and Justices Rishi Persaud and Dawn Gregory. Three appellate judges are required when the Full Bench of the Court of Appeal is in session.
According to the Constitution, the JSC 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 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 acting after meaningful consultation with the Leader of the Opposition 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 National Assembly has meaningfully consulted such bodies as appear to it to represent attorneys-at-law in Guyana and signified its choice of members to the President.”
There was a delay at the level of the Parliamentary Committee on appointments with respect to the acceptance of an outstanding name. The committee was able to meet in June and the name which was submitted by the Bar Association was accepted.
Housty had stressed that when Justices Rafiq Khan SC and former Magistrate and University of the West Indies lecturer Christopher Arif Bulkan sat on the bench last year, the court was moving at a good pace in the disposal of cases. The JSC, before its life came to an end on September 30th, 2017, had interviewed both men and recommended them to the President.
“They helped to accelerate the hearing of several matters,” he said, before endorsing Senior Counsel Stephen Fraser’s call for the timely convening of a JSC. Fraser, during his acceptance into the Inner Bar on June 8th, added his voice to the numerous calls being made for the body to be reconstituted.
“The administration of justice in Guyana requires it as a matter of urgency and whatever we in the Bar can do to facilitate that, we will… [we can] start with comments [and] enquire…,” Housty added.
