More than 16 months after the PPP/C took Office and following repeated assurances of its Government’s commitment in ensuring the reappointment of the Judicial Service Commission (JSC), there is yet to be any progress.
The JSC which has not been reconstituted since 2017, plays a critical role in the appointment of new magistrates and judges and in its absence, this appointment process is significantly hampered and further compounds the already existing issues posed by a shortage of judges.
Just two months ago, President Irfaan Ali again committed to his constitutional mandate in ensuring the necessary appointments to the Commission as well as the long overdue substantive appointments of the two top judicial posts of Chancellor of the Judiciary and Chief Justice.
There has, however, been no progress and it remains unclear what is causing the delay in these critical constitutional appointments which require consultation with the Leader of the Opposition.
Previously, Ali had refused to engage Opposition Leader Joseph Harmon owing to the latter’s refusal to recognize the government as legitimate.
Though not a constitutional requirement, Ali sought to make Harmon’s refusal to recognize the legitimacy of his government, a prerequisite for consultation, stating that unless Harmon so recognized his government, he would have no meeting with him.
Following criticisms, however, among them from Deputy Speaker of the National Assembly and Leader of the Liberty and Justice Party (LJP) Lenox Shuman who called on the President to commence the engagement process with Harmon for the appointments, Ali would eventually walk back on the precondition he had set.
“I am fully committed to abiding by every aspect of the constitution. There is no precondition to fulfilling my mandate in accordance with the constitution. What I know is that you have a president who will fulfill his constitutional mandate and my constitutional mandate in the appointment of various constitutional office holders will be done in full conformity with the requirements of the constitution. I can assure you this,” Ali told a news conference last October.
He at the same time had said that the appointment of the members of the JSC would have been addressed after his return from the United Nations Climate Change Conference which at the time was being held in the UK.
Asked then whether he would be prepared to meet Harmon without any preconditions, Ali had said he was “very committed” to the constitution and will do everything it requires him to. “…Whatever the constitution requires me to do I will do. I have no hesitation in doing that,” he had said.
Meanwhile, Harmon had expressed his willingness to meet Ali.
Back in August of last year, Attorney General (AG) Anil Nandlall SC had said that President Ali was in the process of conducting the requisite consultations to have the appointments to the JSC made by the end of that very month.
“The appointment process is being activated and I know that the president is actively working on appointments…So, before the end of this month I would say, we should have those appointments made public,” Nandlall had said.
Commenting on the President’s refusal at that time to meet with Harmon, the AG had said that the two would have to “fashion a way” forward, but that as Attorney General he could only urge constitutional compliance.
The JSC has not been re-appointed since its expiration on September 30th, 2017, which the Attorney General acknowledged as being “long overdue.”
In accordance with Article 198 (1) of the Constitution, the members of the Judicial Service Commission shall be—(a) the Chancellor, who shall be Chairman;
(b) the Chief Justice;
(c) the Chairman of the Public Service Commission; and
(d) such other members referred to as…appointed members.
On February 22nd of last year, the Committee of Appointments of Parliament nominated Justice (r’td) Beasraj Singh Roy to sit as a member of the JSC.
Meanwhile, in accordance with Article 128 (1) of the Constitution, judges, other than the Chancellor and the Chief Justice, are to be appointed by the President, who shall act in accordance with the advice of the Judicial Service Commission.
Acknowledging the challenges posed by the limited number of judges, Nandlall in November of last year had assured that government was moving apace to address the issue.
He had said that this issue would also have been dealt after President Ali’s return from the global climate conference in Scotland.
The Constitution also mandates consultation between the President and Opposition Leader for confirmation of the country’s top two legal posts.
Justice Yonette Cummings-Edwards and Justice Roxane George were respectively appointed acting Chancellor of the Judiciary and Chief Justice back in 2017—weeks after the retirement of then acting Chancellor Carl Singh, who was also never confirmed despite having served for 12 years.
Article 127 (1) of the Constitution states that the President and the Opposition Leader must agree on the nominees before the substantive appointments can be made. “The Chancellor and the Chief Justice shall each be appointed by the President, acting after obtaining the agreement of the Leader of the Opposition,” it states.
Guyana has not had a substantive Chief Justice since Justice Desiree Bernard was elevated to the post of Chancellor in 2001 and no substantive Chancellor since Justice Bernard stepped down from the bench here in 2005.
For 12 years Justice Singh acted as Chancellor, while Justice Ian Chang acted as Chief Justice before Justice George was appointed to act in that capacity.
