President Bharrat Jagdeo and Leader of the Opposition Robert Corbin resumed consultations on the appointments of a Chancellor of the Judiciary and members of the Judicial Service Commission (JSC) in an attempt to bring to an end what is being termed a pending legal crisis in the judiciary.
Corbin told Stabroek News last week that the consultations had resumed and he was expected to meet the president early last week but because he had been ill the meeting would be postponed to a later date.
In the meantime, former Justice of Appeal Claudette Singh who resigned her judicial post at the Court of Appeal and as a High Court judge effective from the end of October and who was Corbin’s nominee for the post, has left the five-member Court of Appeal with three judges, including Acting Chancellor of the Judiciary Carl Singh, who is also Chief Justice. Corbin said there were other eminent members of the judiciary who had served with distinction and were qualified for the post.
When this newspaper asked AFC Leader and MP Raphael Trotman and GAP/ROAR MP Everall Franklin for suggestions on the appointment of a chancellor and the members of the JSC they said they were unaware that consultations had resumed. They said Corbin had informed them about the resumption of consultations on other issues pertaining to local government elections and the appointment of a chairman for the Police Service Commission. The MPs also said that constitutionally Corbin, as leader of the major Opposition PNCR-1G, is leader of the combined opposition and, in keeping with the new politics and especially in the light of the PNCR’s advocacy of power sharing, they expected some opposition-type consultations or briefings on issues of national importance whenever he met with the President in his constitutional role.
“I have no doubt that when we meet, he [Corbin] would brief us on his meeting with the President on these issues,” Trotman said, adding that it might be useful for Corbin to brief them before he met with Jagdeo since the joint opposition and their constituencies would expect “transparency and not closed-door politics” given that Corbin would not only be representing the PNCR-1G but rather the joint parliamentary opposition.
The non-appointment of a chancellor is hindering the appointment of the JSC since the constitution states that the JSC chairman shall be the chancellor with the other members comprising the chief justice, the chairman of the Public Service Commission and other such members as may be appointed according to special provisions. The special provisions for the appointment of persons by the President include “one from among persons who hold or have held office as 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 any such court acting after meaningful consultation with the Leader of the Opposition”; and “not less than one and not more than two from among persons who are not attorneys at law in active practice, after the National Assembly has meaningfully consulted such bodies as appear to it to represent attorneys-at-law in Guyana and signified its choice of members to the President.”
There could be no new appointments to the court since the life of the JSC, which is tasked with appointing judges, ended in February 2007 and the commission has not been reconstituted due to a breakdown in consultations between the president and opposition leader.
In addition to Justice Singh’s resignation, Justice of Appeal Nandram Kissoon is also due to retire next month or in January 2008, which would leave only one permanent member in the Court of Appeal, Justice Ian Chang, attorney-at-law and former chief magistrate, KA Juman-Yassin said in a letter to the SN editor just over a week ago. While it should be noted that three judges can sit in civil and criminal matters, in some matters of critical importance, the full complement of judges is required.
The post of Chancellor of the Judiciary has been vacant since April 2005, more than two years and seven months since former chancellor, Justice Desiree Bernard, resigned to take up the post of a judge on the Caribbean Court of Justice (CCJ). Since then Chief Justice Carl Singh has acted as Chancellor of the Judiciary, and the Court of Appeal has functioned with three other judges.
During the same month that Bernard resigned there was one consultation between Jagdeo and Corbin and they both favoured different candidates for the position of chancellor. After failing to agree on a candidate Corbin said they agreed to meet again the following week in April 2005 but despite his many written and oral, formal and informal requests no meeting had since been held.
As regards the naming of a new chief justice, after the talks with Corbin failed, Jagdeo said he was awaiting recommendations from a “search committee” whose names he did not disclose. There was an attempt to restart consultations in May but these too were stalled. Additionally, the problems associated with the consultations had resulted in Jagdeo advocating abolishing the post of chancellor and making the chief justice the head of the judiciary, in keeping with what obtained in other Caricom countries. The PNCR-1G opposed this suggestion.
However, using its majority in the National Assembly on August 2, 2007, the government pushed through a bill extending the authority of the Chancellor of the Judiciary without the support of the PNCR-1G. The opposition had argued that the intent of the High Court (Amendment) Act was to extend the powers of the president’s candidate, Justice Carl Singh, who now holds the position of acting chancellor while lessening the authority of the chief justice. Corbin said the bill had violated the laws of the country and that the party had tried by letter and in every way possible to resolve the matter amicably, even seeking the court’s intervention for clarification.
On the other hand, Attorney General Doodnauth Singh said the amendment tidied legislative mechanisms which demonstrated the pre-eminence of the chancellor over the chief justice and other judges, and administratively allowed the former to function as head of the judiciary. Singh argued that the constitutional provisions dealing with the independence of the judiciary ensured that judges were independent of each other and were not subject in the exercise of their judicial functions to any other judge, including the chief justice and chancellor. The AG said the amendment would not only further cement the status of the chancellor as head of the judiciary but would also improve the administration of justice in the public’s interest.
AFC MP Khemraj Ramjattan, the only parliamentary opposition member to contest the bill in parliament, had described the amendment widening the powers of the chancellor as immoral and unacceptable and had labelled it another example of “extreme freakism.” Ramjattan had also questioned the government’s move against the background that the current system had worked well for years. He referred to the government and opposition’s stance as “the two of them want[ing] their individual favourite [as chancellor].”
In addition, Ramjattan said an independent judiciary had certain characteristics and should not be used as a “yo-yo.” He noted that the AFC had been sidelined in all discussions on the judicial appointments although there had been much talk about inclusivity in relation to the opposition, and he warned the government to guard against politicizing the judiciary.
Corbin and PNCR-1G front-bencher Winston Murray insisted that the government’s move had poisoned the environment for further consultations stating that the party had hoped that the government would have deferred the bill until the next sitting and allowed the court to do its work.
PNCR-1G MP Clarissa Riehl filed a conservatory order asking the court to give a constitutional interpretation of the impact of the amendment on the High Court Act,
but the order was granted after the sitting of parliament which dealt with the bill.