As part of its efforts to fill the judicial vacancies that have for years delayed hundreds of cases here, the Judicial Service Commission (JSC) will set aside its tradition of inviting persons it believes are qualified and instead, advertise for candidates, sources say.
A little over one month since it was established, the Judicial Service Commission has met once, sources close to the Commission told this newspaper. And when they meet again, the issue of publicly advertising will be formalised to trigger the process, sources informed.
It was disclosed that there was division among the Commissioners on the process for appointing judges to fill the many vacant posts throughout the country, with some commissioners adamant that the traditional way should be kept. However, the majority stated that in the ‘eyes of transparency”, there should be a public process where the vacancies advertised.
This newspaper was informed that only the JSC’s Chair, acting Chancellor of the Judiciary Yonette Cummings-Edwards, is allowed to speak publicly on issues concerning the Commission.
Contacted on Friday, the Public Relations Officer of the High Court informed that she had been advised by the Personal Assistant to the Chancellor. that a formal request via letter had to be made to be able to speak to the Chair and provided an address and landline telephone number for the Secretary of the JSC. However, calls by the Sunday Stabroek to the number went unanswered.
Advertising for judges is an issue that has been ventilated before. 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.
Overdue by some six years, the long-awaited reconstitution of JSC was realised last month with the swearing-in of its members. With acting Chancellor Cummings-Edwards as the Chairperson, the other commissioners are former Chancellor, Justice Carl Singh; retired Appeal Court Judge Beasraj Singh Roy; acting Chief Justice, Roxane George; and Public Service Commission Chairman, Manniram Prashad. Justice George and Prashad are ex-officio members of the JSC.
The lifespan of the commission is three years and commenced on July 14, 2023. Its remit includes the power to make appointments, to remove and to exercise disciplinary control over persons holding or acting within the offices of Commissioner of Title, Director of Public Prosecutions, Deputy Director of Public Prosecutions, Magistrate, Registrar of the High Court, Deputy Registrar of the High Court, Registrar of Deeds, and Deputy Registrar of Deeds, among others.
The JSC also advises the President on the appointment of judges, with the exception of the Chancellor and the Chief Justice.
In his address following the appointment of the commissioners, President Irfaan Ali had acknowledged the challenge posed by the shortage of judges, stating that the newly-appointed Commission would now be able to address those shortcomings.
“Our judicial system is not without its challenges. We are woefully short of our full complement of judges and magistrates. This naturally has placed greater burdens on our existing pool of judicial officers. Now that the JSC is in place, it is anticipated that some of those burdens will be lifted, thereby allowing for smooth turning of the wheels of justice,” he had said.
And in a column last month, Senior Counsel Ralph Ramkarran described the justice system as being in a state of collapse, specifically alluding to the absence of the JSC which he noted impedes its efficient functioning.
Members of the legal fraternity, including the Chancellor herself, had bemoaned the sloth in having the Commission reconstituted; underscoring how its absence clogged the efficient running of the judiciary.
On January 10 this year, in some of the bluntest language that she had delivered on the subject, the Chancellor made a stirring plea for the urgent reconstituting of the JSC and the appointment of the required number of judges. Speaking at the ceremonial opening of the Law Year 2023, Justice Cummings-Edwards said: “You have heard the call for more resources, human resources in particular. We need more judges! We need the Judicial Service Commission to be established ASAP – as soon as possible. We are facing increased caseloads. Judges are now overburdened, they are exhausted, they are nearly worn out and they are, in some cases, burned out.”
The Chancellor went on to add: “We do not need the rhetoric. We need more labourers. We need the judges. We’ve been hearing time and again about the JSC is soon to be established. We would like to see the implementation and the establishment of the Judicial Service Commission.”
It is unclear why the Commission has only met once, given the urgency underscored by the Chancellor and others.
Widely
On behalf of attorney-at-law Arud Gossai, and public commentator Ramon Gaskin, the legal firm Satram and Satram wrote to all members of the JSC days after its inauguration, making the appeal that they advertise widely for judges and to publish the names of candidates prior to appointment so that they can be vetted. The letter also warned that failure to do this could lead to legal action.
Noting that the JSC was constituted on July 14, 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 noted 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, and as such, the Commission should advertise the vacancies within the Commonwealth.
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.
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.”
Also pointed out was the fact 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 letter said. The firm also emphasised that 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.
