The President cannot be compelled by the JSC

Dear Editor,

The APNU+AFC government was elected on a promise to the Guyanese people inter alia, to ‘restore the rule of law.’

Former Speaker Mr Ralph Ramkarran, in his column in Sunday Stabroek of November 20, ignored the machinations of the PPP/C regime in removing the checks and balances provided by the division of power between the offices of the Chief Justice and Chancellor, and reposing all powers in the office of Chancellor.

Moreover after 2003 when Mr Robert Corbin became Leader of the Opposition, in meetings of the President and Leader of the Opposition to seek agreement on the appointment of the Chancellor and Chief Justice, the PPP/C President had always nominated the current Chancellor (ag) for the substantive post even when former Chief Justice (ag) Mr Ian Chang was put forward by the Leader of the Opposition. As a result there was never agreement and both offices remained acting appointments.

The PPP/C at one time had one person occupying both the offices of Chancellor and Chief Justice at the same time until proceedings were filed in the High Court to challenge it. Justice William Ramlal ruled against it.

In this milieu, there was no transparency in the appointment of judges. This reached its nadir when a man who was a total stranger to the legal community of Guyana, was appointed a Justice of Appeal. That person then was found to be tainted by allegation of wrongful behaviour in no less a place than the English Bar, and was a debilitating injury to our judicial system.

And so we arrive at the present juncture where it is being contended by both the PPP/C and Mr Ramkarran that the President is the JSC’s robot; that the JSC’s advice to him is a command which he must unthinkingly obey and brainlessly appoint.

Nothing could be further from the truth. Both Mr Clement Rohee and Mr Ramkarran are relying on the amendment in Article 128(1) of the constitution which they contend strengthens the power of the JSC to compel, mandate and command the President to appoint on its advice. Article 128(1) reads-

“The Judges, other than the Chancellor and the Chief Justice, shall be appointed by the President who shall act in accordance with the advice of the Judicial Service Commission.”

Incidentally this amendment was occasioned under the PPP/C’s watch by Act No 6 of 2001.

It is contended that in so far as Article 128(1) purports to command the executive President it is unconstitutional.  This is so because it collides with the basic structure or framework of our constitution.

In the Indian Supreme Court the case of The State-v-Kerala (1973) it was held by a 13 Bench court that the word ‘amend’ means only changes other than altering the very structure of the constitution. In other words there are certain basic features of the constitution which cannot be altered in the exercise of the power to amend.

It is submitted that the basic structure of the constitution is premised on the doctrine of the separation of powers between the three arms of the state, namely, the executive, legislature, and the judiciary. No arm could intrude or interfere with the power of the other.

Thus the amendment in 2001 to Article 128 (1) is ultra vires the constitution if it purports to give power to the JSC of the judiciary arm to command the president who is the supreme executive authority of the executive arm of the state. See Article 89 of the constitution which provides-

“There shall be a President of the Co-operative Republic of Guyana, who shall be Head of State, the supreme executive authority, and Commander-in-chief of the armed forces of the Republic.”

It is submitted that the language of Article 128(1) is not mandatory but procedural and discretionary.

In this result the court would be entitled to annul the amendment of Article 128(1) on the ground of it being ultra vires the constitution.

Further, on the text of the amendment itself the interpretation claimed by Mr Ramkarran cannot be borne out, since the President must have a discretion as to how he should proceed to deal with the document put before him. The President may wish to shelve the document with a view to making inquiries to allay fears he may have. He may have personal knowledge as to why he should not sign. In such a case, the President, being an executive president under Article 89, cannot be compelled to sign such a document.

Another point that should not escape our attention is that the language itself places the burden on the JSC to act in a fair, transparent and dispassionate manner in the appointment of persons as judges, otherwise the President in the exercise of his power under the very Article 128(1) can serve as a check and balance on the excess of the commission. The power to appoint judges vests in the President and the power to advise in the JSC. The word ‘advice’ means that such advice may or may not be accepted, and the use of the term “shall act in accordance with the advice” conflicts with the word ‘advice’ and leads to an absurdity and must be interpreted to mean ‘may.’

It is submitted that the 1980 Constitution recognised the executive president could not be compelled by the JSC and therefore used the following language in Article 128(1) which gives the President a discretion namely: –

“The Judges, other than the Chancellor and the Chief Justice, shall be appointed by the President acting in accordance with the advice of the Judicial Service Commission.”

Moreover, Article 111 of the constitution clearly gives the President a discretion when he is required to act in accordance with the advice or on the recommendation of any person or authority, by providing that he could refer any such advice or recommendation back for reconsideration.

Basil Williams

Attorney General and Minister of

Legal Affairs

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