The appointment of judges

Dec 12, 2016 Features / Columnists, Peeping Tom

The President cannot be compelled to act in relation to recommendations on judicial appointments. But once he does act, it has to be in accordance with advice rendered by the Judicial Service Commission.
The Judicial Service Commission is empowered by the Constitution of Guyana, the highest law of the land, to make recommendations to the President for the appointment of judges, other than the Chief Justice and the Chancellor. The latter two positions require agreement between the President and the Leader of the Opposition.
In respect to the appointment of other judges, the President is required to make appointments in accordance with the recommendations by the Judicial Service Commission.
The President, upon receipt of recommendations of the JSC, has the option to send back the recommendations to that body for review.
In other words, the President can ask for a review of any recommendation he received from the JSC, but once that review is done and the JSC returns the matter to him, the President, if he choose to make appointments, has to make appointments in accordance with those recommendations.
The Attorney General of Guyana is correct in his assertion that the President of Guyana cannot be compelled to act. The Regent cannot be subject to compulsion only to persuasion.
This is trite law. But once he chooses to act, he must act in accordance with the Constitution. The Constitution places an obligation on the President to act in a certain manner and if he acts outside of that manner, then his or her actions are unconstitutional.
A row has developed as to whether the President of Guyana shall or may act in accordance with the wishes of the Judicial Service Commission.
The issue is being misrepresented. It cannot be a case in which the Constitution expects that a Service Commission has powers of compulsion over the Head of State.
It does not. But the Constitution does and the President, once he chooses to act, cannot do so outside of what the highest law of the land prescribes.
The President therefore can, for as long he chooses, refuse to appoint any judges as recommended by the JSC. He does not have to appoint. He can sit on it as he is doing in respect to the appointment of a substantive Chancellor.
Guyana does not have a substantive Chancellor. It has a substantive Chief Justice who has been acting as Chancellor for the longest while. The reason for the non-appointment is that because, for the longest while, the leaders of the opposition and the presidents of Guyana were not able to reach agreement on the appointment.
The PNCR had taken the position that the positions of Chief Justice and Chancellor must be advertised. This was their way of expressing their disagreement with the suggestion that the substantive Chief Justice be appointed as Chancellor. The PNCR took the position that the position should be advertised.
The present President of Guyana is tied to that position. He does not know how to release himself from that knot that the PNCR has placed him in.
He has shown no inclination to want to go outside of that position, even though when he appointed someone to act as Chief Justice recently, his government did not ask for the position to be advertised.
The President cannot compel the JSC to advertise for any position. The JSC sets its own procedure and it is a mark of its independence from Executive direction, that it should be free of any compulsion.
If the President does not wish to make appointments as recommended by the JSC, then there is nothing the Courts or the JSC can do.
A constitutional crisis will not develop, but the judiciary, an important arm of the State, will be seriously affected. The President will have to accept the political fallout from any such development.

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