On November 18, a letter from the Attorney-General and Minister of Legal Affairs, Mr Basil Williams, appeared under the caption ‘President is paying careful attention to his constitutional duty in the appointment of judges.’ It purported to be a response to a PPP/C statement issued on November 14. In order to comprehensively respond to this letter, I am forced to recite it sentence by sentence.
- “The PPP/C after 23 years has finally admitted the parlous state in which it had left the judiciary on demitting government.”
It is incomprehensible how the Attorney-General arrived at this deduction. It typifies how he deceptively misconstrues simple language.
- “The judiciary was never a high priority of the PPP/C government except for the seeking to control it.”
Any sensible human being will concede that the judiciary was physically and institutionally transformed under the PPP/C administration. Space will not permit me to list these transformational changes. However, I must mention a few. Every single courthouse from the Court of Appeal to every single Magistrates’ Court throughout this country was physically rebuilt, most with residential quarters for the magistrate in the outlying areas. Almost all were fully air-conditioned. The Court of Appeal now uses voice recording equipment, and facilities to take evidence from witnesses overseas are now available. Mediation has been introduced formally into the judicial system. The Caribbean Court of Justice has been added as our apex court. The complement of High Court judges has been increased from twelve to twenty. The constitution has been amended to strengthen the independence of the judiciary. The appointment of the Chancellor and the Chief Justice is now only possible after an agreement between the President and the Opposition Leader. And I can go on.
The aforesaid contention about “control” comes from an AG whose government not so long ago abolished appeals to the Privy Council and flew its party flag higher than the national flag in the Court of Appeal compound. Many judges and magistrates were forced to migrate because their decisions did not meet with the approval of the PNC government. His President is now defying recommendations from the Judicial Service Commission (JSC). Again I can go on.
- “The judiciary was not independent because it had no financial independence, until the APNU+AFC government came to office and passed legislation to effect same.”
By this singular statement, the AG has unwittingly indicted and impugned the integrity of every single judge who has served this country from 1966 to 2015, including the current complement of judges. Needless to say, the legislation to which he makes reference is but a mere sham because since its enactment in 2015, both sets of budgetary proposals which have been submitted by the judiciary for monies have been cut publicly by the Minister of Finance in the National Assembly.
- “In particular the PPP/C government inflicted a mortal blow on the independence of the judiciary when it passed legislation to remove the powers hitherto inhering in the office of Chief Justice and reposing them in the office of Chancellor.”
Clearly, the AG misinterprets the legislation to which he refers. The legislation removed no powers from the office of the Chief Justice. All it did was to make the office of the Chief Justice subject to the general directions of the office of the Chancellor. There is absolutely nothing wrong with this amendment. In fact, it came nearly fifty years late. After all, the Chancellor is the head of the judiciary and should exercise administrative supervision over the office of the Chief Justice. Indeed it is the PNC Government in 1966 which created the office of the Chancellor over and above that of the Chief Justice.
- “This resulted wittingly or unwittingly in the PPP/C seeking to place their nominee in the office of the Chancellor at every meeting of the President and Leader of the Opposition to agree on the appointment of a Chief Justice and Chancellor, there being no power in the office of the Chief Justice.”
This statement hardly makes sense in law, logic or language. Suffice it to say that it is the President’s constitutional responsibility to identify suitable candidates for the positions of Chancellor and Chief Justice and then solicit the agreement of the Leader of the Opposition in respect of each candidate in accordance with the provisions of the Constitution.
- “The alleged shortage of judges was not occasioned under the APNU+AFC government which inherited excessive delays in both the civil and criminal jurisdictions and the crippling backlog of cases in all courts.
“The question therefore is why didn’t the PPP/C government make those appointments while in office?”
Again, a lack of comprehension is the main issue. The PPP/C statement specifically addressed the problems which arose as a result of the departure of Chief Justice Chang in January 2016, that is, after the PPP/C left office. So the question asked is a non-sequitur.
- “The courts are functioning now as they were under the PPP/C a year and a half ago when the APNU+AFC took up the helm of government.”
Here is a frank admission from the Attorney-General that his government has done nothing during the past eighteen months in respect of the judiciary.
- “President David Granger while Leader of the Opposition had called for vacancies in judicial offices to be advertised so that our judiciary would attract the best possible candidates.”
President David Granger, as Leader of the Opposition also promised public safety, job creation, new investments, a revitalized sugar industry, new markets for rice, etc. None has materialized. But more importantly, the recruitment of judges is the exclusive constitutional responsibility of the JSC. The Constitution insulates the JSC from the dictates of the President or anyone else. The Leader of the Opposition was therefore trespassing upon the constitutional domain of the JSC when he made that statement. It is for the JSC to determine whether it would advertise for judges or not. In any event, in Guyana, we have never advertised judicial vacancies.