I refer to the letter from Attorney General Basil Williams in your edition of November 30 (‘The President cannot be compelled by the JSC’) in response to my recent article (‘On the warpath against the Constitution’, SN, Novermber 20). I had argued that the President of Guyana is bound to appoint judges who are recommended by the Judicial Service Commission (JSC) by virtue of Article 128 of the Constitution, which says that the President “shall” appoint persons so recommended. The AG had two days earlier said in a letter to SN that the President has a discretion and is not bound to act on the recommendation of the JSC. My article was intended to correct that false notion.
The main legal test for interpreting the intention of the framers of any law is the language used. The word “shall” admits of no other interpretation than a ‘command,’ if that is the word the AG wishes to use. I would have preferred to say that the President is obliged to accept the advice of the JSC unless he has compelling reasons not to do so. There is no time limit for the President to act but undue delay will attract disquiet. The President can certainly take his time and can refer the recommendation back to the JSC for further consideration in the light of any concerns he may have. If the JSC returns the recommendation unchanged then the President is obliged to act on the recommendation. This is what happened in the case of Justice Bovell-Drakes.
I have nothing further to add to my argument that the President is bound to appoint the persons recommended by the JSC. Article 128 is clear. But the AG says that Article 128 is merely procedural, is ultra vires the constitution and is itself unconstitutional.
If it is procedural, it cannot at the same time be ultra vires and unconstitutional. And a provision within the constitution cannot be ultra vires the same constitution. There can be a contradiction in which case the court is charged with the task of resolving it, not the AG. But there is nothing that is contradictory in requiring that the President “shall act in accordance with the advice” of the JSC, as the AG argues. He is wrong to suggest that the use of the word “advice” implies a discretion and conflicts with the peremptory “shall.” This is a common constitutional formula. Further, the view that a clear provision of a Constitution, validly enacted, is unconstitutional is unknown anywhere in the known world.
The AG also relies on Article 89, which states that the President is the supreme executive authority, to argue that he has a discretion and can review and even reject the JSC’s nomination. All Article 89 means is that the President is the supreme authority over the executive, not of the judiciary or the legislature or the Constitution, which provides for constitutional bodies such as the JSC. These are not part of the executive. The separation of powers is alive and well in Guyana and it applies to the President.
The AG has repeatedly accused a past PPP/C government of removing the “checks and balances provided by the division of power between the offices of Chief Justice and Chancellor, and reposing all powers in the office of the Chancellor.” The amended section reads as follows:
“66. Subject to any general or special directions of the Chancellor, the Chief Justice may determine the distribution of the business before the Court among the judges thereof, and may assign any judicial duty to any judge or judges.” It is therefore a gross distortion for the AG to argue that the Chief Justice has been denuded of powers and that all power is reposed in the Chancellor. As the section shows, the Chief Justice retains all the powers the office had before the amendment. The AG has the wherewithal to find out exactly what “general or special” directions the Chancellor may have given since the amendment in 2007. I am sure he will let the public know when he discovers the answer.
The President has to obtain the agreement of the Leader of the Opposition for the appointment of Chancellor and Chief Justice. There is no constitutional provision for the Leader of the Opposition to make nominations, so that the President would only have been extending a courtesy to Mr Corbin to entertain his nomination of Mr Ian Chang, who was junior to Mr Carl Singh, as Chancellor. All that the Constitution allows Mr Corbin to do is to agree or disagree with the President’s recommendation. The AG seems to believe that even though the then President entertained a nomination by Mr Corbin, President Jagdeo’s duty was to drop his own nominee and appoint Mr Corbin’s nominee in order that agreement might have been achieved. What twisted logic!
The AG argues that there is no transparency in the appointment of judges. I answered this fully in my article referred to above. The JSC, like all other constitutional bodies, conducts its business in private. If the AG wishes it to function in a different manner than it has historically done, he can put forward the appropriate legislation for it to have its meetings open to the public!