No Judicial Service Commission since 2017: the crisis deepens

Oct 29, 2019 Letters

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DEAR EDITOR,

Like in every other Constitution in the English-speaking Commonwealth, embedded in the Guyana Constitution, is a series of checks and balances, whose functions are to minimize abuse of power, ensconce the doctrine of Separation of Powers and to promote a democratic ethos so necessary for the promotion of good and accountable governance and the Rule of Law.
Among this array, are the service commissions. They are created by the Constitution itself and their role and functions are the subject of express provisions, which are deeply entrenched. In the case of Thomas v Attorney General of Trinidad and Tobago, 32WIR 375, Lord Diplock, summarized the functional responsibilities of these Commissions, as follows:
“The purpose of these Commissions is to insulate their members from political influence exercised directly upon them by the Government of the day. The means adopted for doing this is vest in autonomous commissions, to the exclusion of any other person or authority, power to make appointments to the relevant service, promotions and transfers within service and power to remove and exercise disciplinary control over members of the service. The members of the commissions are independent and faithfully exercise their duties with fairness and impartiality and without fear and favour. In the exercise of its functions a commission is not subject to the direction and control of any person and authority.”
The Judicial Service Commission (JSC) is one of such Commissions. This Commission is created by Article 134 of the Constitution. Its composition is set-out in Article 198. It compromises of the Chancellor, who is the Chairman, the Chief Justice and the Chairman of the Public Service Commission (PSC). The other members are – (a) one from among persons who hold or have held the office of a Judge of a Court having unlimited jurisdiction in civil and criminal matters, in some part of the Commonwealth or a Court having jurisdiction in appeals from such Court, after meaningful consultation with the Leader of the Opposition; and (b) not less than one and more than two, from among persons who are Attorneys-at-Law, not in active practice, nominated by the National Assembly, after it has consulted such bodies as appear to it to represent Attorneys-at-Law. Each member is appointed by the President. The tenure of each appointed member is for three years.
The functions of the JSC are set out in Article 199 of the Constitution. It has the power to make appointments to, to remove and to exercise disciplinary control over persons holding or acting in the following offices – Commissioner of Title, Magistrate, Director of Public Prosecutions, Deputy Director of Public Prosecutions, Registrar of the High Court, Deputy Registrar of the High Court, Registrar of Deeds and Deputy Registrar of Deeds and to such offices connected with the Courts or for appointment to which legal qualifications are required as may be prescribed by Parliament.
The forgoing perambulation is intended to illustrate the fundamental importance of a functional JSC to the democratic architecture of, and the administration of justice in, Guyana.
The last JSC was appointed by President Donald Ramotar on the 11th day of September 2014. The tenure of this Commission, therefore, expired on the 12th day of September 2017 – over two years ago. No person has been appointed to the JSC since. So, since September 2019, none of the fundamental functional responsibilities, which devolve upon the JSC as outlined above, have been perform.
Despite the rantings of the Government and its apologists, there is no doubt that the life of the Executive, itself, expired on the 18th September 2019, consequent upon the passage of a No-Confidence Motion in the National Assembly on the 21st December 2018. It is equally clear that the Eleventh Parliament of Guyana has suffered the same fate. With an unconstitutional Executive, occupying the seat of Government by imposition, along with a Parliament whose tenure has expired, a JSC cannot be appointed until after the elections, as the Constitution requires the appointments to be made by the President with an input from the National Assembly. However, by virtue of the very Constitution, there is no President, neither is there a National Assembly.
The Coalition Government has once again etched its name in the annals of notoriety, as being the only Government in the English-speaking Caribbean that served more than half of its legal term in Office, without appointing a JSC, when required to do so by the Constitution.
A clinical constitutional analysis of the governmental structure that currently exists in Guyana, leads to this ineluctable conclusion: there is no lawful Executive, nor Legislature; the only branch of Government which obtains is a Judiciary, which is presided over by an acting Chancellor and an acting Chief Justice, discharging the functions of those two Offices without the support, oversight or disciplinary powers of a JSC.
Those who still yet refuse to recognize the constitutional crisis in which Guyana is engulfed, remind me of those subjects blinded by psychopathic loyalty, who refused to see the stark nakedness of the vain Emperor showing off his “new clothes” in that ancient Danish fable.

Mohabir Anil Nandlall, MP,
Attorney-at-Law

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