Members of the Judicial Service Commission (JSC) have been called upon to advertise widely for judges and to publish the names of candidates prior to appointment so that they can be vetted.
On behalf of attorney at law Arud Gossai and public commentator Ramon Gaskin, the legal firm Satram and Satram yesterday wrote to all members of the JSC making the appeal and warning that failure to do this could lead to legal action.
Noting that the JSC was constituted on 14th July, 2023, the law firm said its clients have an interest in ensuring that there is compliance with the Constitution in the appointment of Judges. The law firm said that the Commission may be aware that its decisions are subject to Judicial Review and this means that in the exercise of any discretion, the Commission must act reasonably, rationally and fairly.
“We are aware of the practice, rooted in the traditions of England, whereby the Head of the Judiciary would invite suitably qualified persons to join the Judiciary. This practice is not consistent with our Constitution, particularly Article 129 thereof. That provision stipulates that all persons qualified for admission as Attorneys-at-Law in Guyana are eligible to be appointed as a Judge. For this reason, we urge the Commission to advertise, within Guyana and in the wider Caribbean, all vacancies for the position of Judge”, the law firm said.
The letter to the JSC members noted that persons holding the Legal Education Certificate from the Council of Legal Education are by section 4 (1) of the Legal Practitioners Act entitled to be admitted as Attorneys-at-Law in Guyana.
“It would amount to a gross violation of the Constitution for the Commission by its conduct to limit the number of applicants for any vacancy of Judge. The provisions of the Constitution and good administration and transparency dictates that all persons eligible for appointment should have an opportunity to be considered for the position. Unless the vacancies are advertised, the Commission can never be properly satisfied that it has attracted the most suitably qualified candidates. Every person who meets the requirements specified in Article 129 of the Constitution and section 5 of the High Court Act enjoys a right to apply for and be considered for appointment. The Commission has no power to curtail this right”, the law firm asserted.
It noted that Article 129 (1) (a) of the Constitution provides for the possibility of persons who are or were Judges within the Commonwealth to be appointed as Judges. As such, the Commission should advertise the vacancies within the Commonwealth, it advanced.
The law firm also raised the question of competence and the efficiency of delivering decisions.
It said that the relevant Constitutional provisions regarding the appointment and removal of Judges encompasses competence in addition to independence and impartiality.
“The Commission’s attention is drawn to Article 197 (3) which provides for the removal of Judges for `persistently not writing decisions or for continuously failing to give decisions and reasons therefor within such time as may be specified by Parliament’. Parliament has enacted the Time Limit for Judicial Decisions Act specifying the times within which Judges must give decisions and reasons. The Commission has to be therefore satisfied that the persons they intend to appoint or recommend for appointment are capable of giving written decisions within the time-limits stipulated by Parliament. It would be a violation of the Constitution for the Commission to appoint or promote sitting Magistrates and Judges who have a history of not delivering timely judgments. In the circumstances, the Commission has a Constitutional duty to request and consider, from potential applicants and other sources, evidence of their compliance or ability to comply with the Time Limits for Judicial Decisions Act”, the letter from the law firm stated.
Criteria
It added that the appointments must be done on the basis of objective criteria.
“Our clients demand that the criteria which the Commission intends to utilize should be made public in the interest of transparency. The Commission ought to be aware that its decisions will impact thousands of litigants and potential litigants who will not be consulted in the appointment process. As a result, the Commission has a heightened duty of transparency and accountability in any appointment process it embarks upon or employs.
“Our clients will challenge any decision of the Commission, which does not enjoy immunity from suit, that fails to comply with the Constitution and the ordinary principles of Judicial Review. Because of the public nature of these appointments and its potential impact on public life, our clients demand that the list of potential appointees be published prior to their appointment and that members of the legal profession and the general public be invited to make submissions to the Commission on the suitability of potential candidates”, the letter urged.
It said that the applicants do not enjoy any right of confidentiality when applying for a Constitutional office.
“The right of the public to ensure compliance with the Constitution displaces any such notion of confidentiality, if it does exist. The appointments are not private in nature.
The need for this form of transparency is a legal necessity because once appointed, Judges enjoy security of tenure and immunity from suit, making it virtually impossible to remove them.
“We expect to hear from the Commission on the modalities it will apply with respect to advertisement, the objective criteria to be applied and the other steps it will take to assure transparency prior to making any appointments”, the law firm said.
The letter was sent to the acting Chancellor of the Judiciary, Yonette Cummings-Edwards, acting Chief Justice Roxane George, retired Chancellor of the Judiciary, Carl Singh, retired Justice of Appeal BS Roy and Manniram Prashad. The letter was also sent to Attorney General Anil Nandlall and the Secretary of the JSC.
The JSC was reconstituted last week after a gap extending back to 2017 and across two different administrations.
Questions have been raised in the past as to how judges have been appointed and preferred. It has been contended that these decisions are not transparent and reflect subjective choices by members of the JSC.
Advertising for judges is an issue that has been ventilated before.
In 2018, the now late former Chancellor of the Judiciary, retired Justice Cecil Kennard had said 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.
During 2018, 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 were then 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.
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.
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.
“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.
