The Attorney-General’s statement is riddled with legal errors

Nov 29, 2016 Letters

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Dear Editor,
On 17th November, 2016 the Attorney-General issued a press statement under the caption “Appointments to the Judiciary.” This statement purports to be a response to a Statement issued by the PPP/C on the 14th day of November, 2016. The PPP/C Statement simply highlighted the problems which have been precipitated both in the High Court and the Court of Appeal by the retirement of Chief Justice Chang in January, 2016 and the migration from the Court of Appeal to the Office of the Chief Justice by Justice of Appeal, Yonette Cummings-Edwards who now acts in the Office of Chief Justice. The Statement further calls upon the President to appoint more Judges in accordance with certain recommendations made to the President by the Judicial Service Commission earlier this year.
The AG’s Statement is riddled with legal errors. I hereby respond to each sentence.
1. “The PPP/C after 23 years has finally admitted the parlous state it had left the Judiciary in demitting government.”
2. “The Judiciary was never a high priority of the PPP/C government except for the seeking to control it.”
Every single courthouse from the Court of Appeal to every single Magistrates’ Court throughout this country was physically rebuilt; most with residential quarters for the Magistrate in the outlying areas; almost all fully air-conditioned; the Court of Appeal now uses voice recording equipment; facilities to take evidence from witnesses oversees are now available. Mediation has been introduced formally into the Judicial System. The Caribbean Court of Justice has been added as our apex court. The complement of High Court Judges has been increased from twelve (12) to twenty (20). The Constitution has been amended to strengthen the Independence of the Judiciary. The appointment of the Chancellor and the Chief Justice is now only possible after an agreement between the President and the Opposition Leader. And I can go on.
3. “The Judiciary was not “Independent” because it had no financial independence, until the APNU+AFC Government came to office and passed legislation to effect same.”
By this singular statement, the AG has unwittingly indicted and impugned the integrity of every single Judge who has served this country from 1966 to 2015, including the current crop of Judges. He has reduced them all to political puppets. For according to him, only now Judges are truly independent. For this he should be hauled before the courts for contempt.
4. “In particular the PPP/C government inflicted a mortal blow on the independence of the Judiciary when it passed legislation to remove the powers hitherto inhering in office of Chief Justice and reposing them in the office of Chancellor.”
The legislation removed no powers from the Office of the Chief Justice. All it did was to make the Chief Justice Office subject to the general directions of the Office of the Chancellor. After all, the Chancellor is the head of the Judiciary and should exercise administrative supervision over the Office of the Chief Justice.
Indeed it is the PNC Government in 1966 which created the Office of the Chancellor over and above that of the Chief Justice. At the time it was felt that Prime Minister Burnham did so to humiliate the Chief Justice at the time Sir Joseph Luckhoo over whom he could not exert influence nor control. As a result, Chief Justice Luckhoo migrated.
5.“This resulted wittingly or unwittingly in the PPP/C seeking to place their champion in the office of the Chancellor at every meeting of the President and Leader of the Opposition to agree on the appointment of a Chief Justice and Chancellor there being no power in the office of the Chief Justice.”
It is the President’s constitutional responsibility to identify suitable candidates for the positions of Chancellor and Chief Justice and then solicit the agreement of the Leader of the Opposition in respect of each candidate in accordance with the provisions of the Constitution.
6. “Having removed all the checks and balances necessary to guarantee an independent and effective judiciary, the way was paved for secret appointments to the bench by the JSC and a PPP/C President who created the distortion in the Judiciary in the first place.”
The manner in which Judges are appointed in Guyana now is the same as it was, since 1966. The Judicial Service Commission recruits and recommends to the President for his appointment. Prior to 2001, the President had a greater discretionary power when dealing with recommendations coming from the Judicial Service Commission. After the 2001 amendments to the Constitution, those discretionary powers were reduced and the President is now mandated to act upon the recommendations of the JSC. If the President disagrees with a particular recommendation, he has the power to send it back to the JSC for their reconsideration. If after their reconsideration, the JSC sends back that same recommendation to the President, he must accept and act upon it.
7. “The alleged shortage of judges was not occasioned under the APNU+AFC government which inherited excessive delays in both the civil and criminal jurisdictions and the crippling backlog of cases in all courts.”
The question therefore is why didn’t the PPP/C government make those appointments while in office?
The PPP/C Statement specifically addressed the problems which arose as a result of the departure of Chief Justice Chang in January 2016, that is, after the PPP/C left office.
8. “The courts are functioning now as they were under the PPP/C a year and a half ago when the APNU+AFC took up the helm of government.”
Here is a frank admission from the Attorney-General that his Government has done nothing during the past eighteen months in respect of the Judiciary.
9.“His Excellency President Brigadier David Arthur Granger while Leader of the opposition had called for vacancies in judicial offices to be advertised so that our judiciary would attract the best possible candidates.”
The recruitment of Judges is the exclusive constitutional responsibility of the Judicial Service Commission. The Constitution insulates the JSC form the dictates of the President or anyone else. The Leader of the Opposition was therefore trespassing upon the constitutional domain of the JSC when he made that statement. It is the JSC to determine whether it would advertise for Judges or not. In any event, in Guyana, we have never advertised judicial vacancies.
Mohabir Anil Nandlall

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