Is the judiciary going down a path it went before?

Apr 08, 2017 Letters

Dear Editor,
At the swearing-in ceremony of the acting Chief Justice and acting Chancellor, the President made a most startling revelation. He was asked by the press about his refusal to act upon the recommendations he had received from the JSC over a year ago. He was quoted in the press as follows: “I withheld approval because I sent recommendations to the present Chancellor who has agreed to look at them and resubmit a list to me.” This statement demonstrates a shocking misconception of the true constitutional position. While I do not hold the President responsible for this lack of understanding of the Constitution, since he is not a lawyer, he must be held responsible for continuing to retain in office, an Attorney General, who is demonstrably incapable of advising, him properly, on these matters.
Article 128 (1) of the Constitution states, “The Judges, other than the Chancellor and Chief Justice shall be appointed by the President who shall act in accordance with the advice of the Judicial Service Commission.” The use of the word ‘SHALL’ in the Article, clearly imposes upon the President, a mandatory obligation to act, in accordance with the advice of the JSC. In other words, the President has absolutely no power or authority to question or to second-guess the advice of the JSC. To do so, would be to usurp the functions of the JSC. Indeed, by making ‘recommendations’ to the Chancellor, who is, ex officio the Chairman of the JSC, the President may have violated Article 226 (1) of the Constitution. Article 226 (1) states: “save as otherwise provided in this Constitution, in the exercise of its functions under this Constitution a commission shall not be subject to the direction or control of any other person or authority.”
It is clear that the President, intuitively, believes that the recommendations of the JSC must find his acceptance or approval. That is not so. When these recommendations are received from the JSC, the President has ONLY two options. Firstly, he must appoint in accordance with those recommendations or, secondly, he can exercise an option, which Article 111 (2) of the Constitution offers him. Article 111 (2) states that the President may refer the recommendations from the JSC back to them for reconsideration. When this is done, the JSC will have to reconsider the recommendation, in so doing, they are free to change it and send a new recommendation to the President; or they can reconsider it, do not change it and send it back to the President, this time the President must act on it.
In short, it is clear that the President has no power to sit on the recommendations of the JSC and not act; it is equally clear that he has no authority to make recommendations of any type to the JSC, other than send back their own recommendations for reconsideration. Therefore, on both counts, President Granger is guilty of violating the Constitution. It is obvious, that the President was not happy with the recommendations, which came from the last JSC, hence his refusal to act upon it for over a year.
It is to be noted, that the President did not send back to the JSC the recommendations, which came to him, as he can do under Article 111 (2), but the President has made his own recommendations to the JSC. This is absolutely wrong. Unless this is publicly condemn and perhaps challenged in the courts, the President may feel that he is empowered to tell the JSC whom he wishes them to recommend to him for appointment as Judges. This will make a mockery of the entire constitutional process.
When one adds to this a challenged Attorney General’s constant scandalizing and contemptuous verbal assaults of Judges, both in the Courtroom and in the press, coupled with his incredulous attempts at subsequent denial, thereby further insulting the integrity of the Judges by carving them out to be liars, one cannot help but conclude that Judicial independence is under siege. Unless this downwards slide is swiftly arrested, we are heading straight back into that era when the PNC flag was flown in the compound of Guyana’s highest Court and when a Chancellor of the Judiciary felt that the judicial decisions should be in consonance with the political philosophy of the Government of the day.
Anil Nandlall

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