Lawyer, activist want transparency in selection of new judges

Jul 21, 2023 News

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…urge JSC to advertise widely; say practice not in keeping with constitution

Kaieteur News – The traditional practice of appointing Justices to sit at the Guyana Court of Appeal and High Court by way of invitation is set be the subject of litigation.

According to a letter written by the law firm, ‘Satram and Satram’ on behalf of attorney, Arud Gossai and public commentator, Ramon Gaskin, the move is in the interest of transparency and ensuring the newly constituted board of the Judicial Service Commission (JSC) acts in compliance with the constitution in the process of appointing judges by advertising the vacancies.

The letter addressed to the new JSC board constituted on 14th July, 2023 notes that while the practice of having the Head of the Judiciary invite suitably qualified persons to apply for the position is rooted in the traditions of England, it is not consistent with Article 129 of the Guyana constitution.

In the letter, the law firm stated it is expected that the Commission will soon commence its work, which includes the appointment of qualified persons to hold or act in the office of Judge. As such, the JSC should be cognizant that the continuation of its current method of appointing judges can lead to legal action taken against it.  “Our clients have an interest in ensuring that there is compliance with the Constitution in the appointment of Judges. The Commission may be aware that its decisions are subject to Judicial Review. This means that in the exercise of any discretion, the Commission must act reasonably, rationally and fairly…,” the letter stated.

GROSS VIOLATION

It further went on to explain since the invitation only method is not consistent with the Constitution; the vacancies for judges should therefore be advertised.  The law firm said a refusal to advertise to fill the vacancies would amount to “a gross violation of the Constitution,” for the Commission and limit the number of applicants for any vacancy of Judge.  The provisions of the Constitution and good administration and transparency dictate that all persons eligible for appointment should have an opportunity to be considered for the position.

“Particularly Article 129 of the constitution…stipulates that all persons qualified for admission as Attorneys-at-Law in Guyana are eligible to be appointed as a Judge. For this reason, we urge the Commission to advertise, within Guyana and in the wider Caribbean, all vacancies for the position of Judge. Persons holding the Legal Education Certificate from the Council of Legal Education are by section 4 (1) of the Legal Practitioners Act entitled to be admitted as Attorneys-at-Law in Guyana,” the law firm explained. Satram and Satram said unless the vacancies are advertised, the Commission can never be properly satisfied that it has attracted the most suitably qualified candidates.

The firm stated, “Article 129 (1) (a) of the Constitution provides for the possibility of persons who are or were Judges within the Commonwealth to be appointed as Judges. As such, the Commission should advertise the vacancies within the Commonwealth. Every person who meets the requirements specified in Article 129 of the Constitution and section 5 of the High Court Act enjoys a right to apply for and be considered for appointment. The Commission has no power to curtail this right.”

COMPETENCE

In the letter, the firm stated that in addition to need for independence and impartiality, the Constitution also guarantees that judicial officers shall be competent. “The Commission’s attention is drawn to Article 197 (3) which provides for the removal of Judges for ‘persistently not writing decisions or for continuously failing to give decisions and reasons therefore within such time as may be specified by Parliament’.” It explained that the Commission has to be therefore satisfied that the persons they intend to appoint or recommend for appointment are capable of giving written decisions within the time-limits stipulated by Parliament.  “It would be a violation of the Constitution for the Commission to appoint or promote sitting Magistrates and Judges who have a history of not delivering timely judgments. In the circumstances, the Commission has a Constitutional duty to request and consider, from potential applicants and other sources, evidence of their compliance or ability to comply with the Time Limits for Judicial Decisions Act. The appointments must be done on the basis of objective criteria.”

TRANSPARENCY

In the interest of transparency, ‘Satram and Satram’ said that their clients demand that the criteria which the Commission intends to utilize should be made public.  The Commission ought to be aware that its decisions will impact thousands of litigants and potential litigants who will not be consulted in the appointment process. As a result, the Commission has a heightened duty of transparency and accountability in any appointment process it embarks upon or employs. “Our clients will challenge any decision of the Commission, which does not enjoy immunity from suit. Because of the public nature of these appointments and its potential impact on public life, our clients demand that the list of potential appointees be published prior to their appointment and that members of the legal profession and the general public be invited to make submissions to the Commission on the suitability of potential candidates,” the letter added.

Further, it emphasised that “the Applicants do not enjoy any right of confidentiality when applying for a Constitutional office. The right of the public to ensure compliance with the Constitution displaces any such notion of confidentiality, if it does exist. The appointments are not private in nature.” The law firm stressed that the need for this form of transparency is a legal necessity because once appointed; Judges enjoy security of tenure and immunity from suit, making it virtually impossible to remove them. As such, the firm said that it expects to hear from the Commission on the modalities it will apply with respect to advertisement, the objective criteria to be applied, and the other steps it will take to assure transparency prior to making any appointments.”

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• Arud Gossai, Attorney-at-Law, judges, Public Commentator, Ramon Gaskin

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