The Committee for the defence of the Constitution has moved to the High Court against the Judicial Service Commission (JSC) and its members over the status of five High Court judges, two of whom have been acting for more than five years in that capacity.
Justice Jainarayan Singh Jr and Justice Dawn Gregory-Barnes have been acting for more than five years, an affidavit in support of the summons said. Justice James Bovell-Drakes, Justice Rishi Persaud and Justice Winston Patterson have been acting for more than two years.
The lawyers who make up the Committee for the Defence of the Constitution have summonsed Attorney General Doodnauth Singh; Chancellor of the Judiciary (ag) and Chief Justice Carl Singh; Chairman of the Public Service Commission George Fung-On; and other JSC members retired justice Prem Persaud and Bryn Pollard.
They seek a declaration from the court that the five judges have a legitimate expectation that they will be appointed permanent judges of the High Court and that this be done promptly. They also seek a declaration that Guyanese are entitled to fair hearings in courts presided over by judges who enjoy security of tenure. Along with costs, the lawyers also seek a declaration that five acting judges out of a complement of ten is excessive and in breach of Article 122A of the Constitution and that the failure to appoint them is an infringement of the judges’ and citizens’ right to an independent judiciary.
The court will also be required to determine, among other things, whether the holding of such acting appointments for such lengthy periods of time is contrary to the Constitution of Guyana. Other questions to be determined include whether the Constitution requires that the period for which persons are appointed to act as judges without confirmation of their appointments is limited to three months.
The committee also questions whether the length of time that the judges have been acting was not prima facie confirmation that their capacity and competence to sit as permanent judges of the High Court have been acknowledged by the authorities.
Attorney-at-law Stephen Fraser, a director of the Committee for the Defence of the Constitution, said in an affidavit in support that according to Articles 122A, 123, 124, 125, 134, 144(8), 197, 198 and 199 the judicial functions of the High Court should be discharged by judges who enjoy security of tenure and independence from political, executive or any other from of control and that acting judges do not enjoy security of tenure.
Lawyers for the Committee for the Defence of the Constitution are Senior Counsel Rex McKay, Miles Fitzpatrick, and Keith Massiah; and attorneys-at-law Nigel Hughes and Fraser.
