Non- appointment of JSC creates constitutional vacuum

Jul 15, 2018 News

Anil Nandlall

The Constitution of the Cooperative Republic of Guyana mandates (at Article 134 (1)) that there shall be a Judicial Service Commission, (JSC).
The Constitution also vests the Judicial Service Commission with the authority to make appointments and to remove and exercise disciplinary control over persons holding or acting in such offices.
The Judicial Service Commission is an indispensible element of Guyana’s legal framework. The ‘Commission’ is the guardian of judicial autonomy. It is the defender of its independence. It is the protector of its integrity and impartiality.
Those were the words of President David Granger as he addressed a gathering of media operatives on the occasion of the appointment of the members of the JSC, last year.

President, David Granger

However, it has been almost one year since the life of that commission expired. And political figures and commentators are pointing to the implications of not having a JSC in place.
Most recently, opposition parliamentarian and former Attorney General, Anil Nandlall, expressed concerns at how the matter is being treated by the present administration.
The PPP, Member of Parliament, (MP) noted that he is unaware of any discernible steps being taken by this Administration to reconstitute the JSC.
“The life of the membership of the last JSC expired since the 30th September 2017 – ten months ago! As a result, there has been a huge constitutional vacuum. No coroner, nor magistrate nor judge could have been, or can now, be appointed.”
There are two Judges who are currently sitting in the Guyana Court of Appeal who were appointed to act as Justices of Appeal for specified periods. Those appointments will expire within a month. There is no JSC, which can recommend an extension or their replacements.”
It is against this backdrop that Nandlall is criticizing the government over the failure to appoint a new JSC Board.
Outlining the authority of the government under the current structure, Nandlall noted that the executive branch of Government enjoys a significant advantage over the two legislative and judicial arms of governance because it controls the financial machinery of the State, and therefore the other two organs depend upon it for their funding.
“In recognition of being in this peculiarly advantageous position, it is incumbent upon the Executive branch of Government, in Guyana’s constitutional structure, to ensure that it does not abuse this advantage, and that at all times, it magnanimously ensures that these constitutional institutions are adequately resourced and appointments to offices within them are timely made, ” Nandlall said
On the contrary, the former Attorney General believes that the current Administration has been exploiting that advantage.
He noted that several articles have been written detailing the Attorney General’s public refusal to recognise the JSC’s constitutional power to appoint certain officers within the Deeds and Commercial Registry Authority and his refusal to allow those officers to discharge their functional responsibilities.
“I also wrote several articles highlighting the President’s failure to act, for nearly a year, upon recommendations made by the then JSC to elevate certain puisne Judges to the Court of Appeal and to elevate and to appoint persons as High Court Judges and Commissioners of Title.
“The shocking response of the Government to my criticisms was that the Constitution does not stipulate any time period for the President to act upon these recommendations. “
However, Nandlall says those who truly understand the language and spirit of the Constitution and the law, would tell you that the President is expected to act in those circumstances with every convenient speed.