Can list of judges for promotion be reviewed by new JSC?

Acting Chancellor of the Judiciary Yonette Cummings-Edwards and the new Judicial Service Commission (JSC) will soon have to decide whether they can review a list of judges for promotion which had been put together by the previous JSC.

Former attorney general Anil Nandlall does not believe that this is possible and he further argues that the manner in which President David Granger treated the original list of promotions supplied to him was tantamount to the President determining which judges should be promoted.

In May last year, the JSC, under the chairmanship of now retired acting Chancellor Carl Singh, had submitted a list of four nominees—two for the Court of Appeal and two for the High Court—to President Granger but he did not act on the recommendations. Nearly a year has gone by and observers say it appeared that the government was waiting for the retirement of Justices Singh and Ian Chang and for a recomposing of the JSC. That is now possible with the recent appointments of Justice Cummings-Edwards and acting Chief Justice Roxane George.

Granger recently said that the list of promotions was with Justice Cummings-Edwards for her to have a look, following which she is to resubmit a list to him.

Speaking to Sunday Stabroek, Nandlall argued that the President had only two options, send the list back to the JSC for reconsideration or appoint the nominees. He didn’t send the list back to Justice Singh’s JSC neither did he appoint the judges.

Nandlall said that during the recent swearing-in ceremony of Justice Cummings-Edwards and   Justice George, the President made a most startling revelation.

“He was asked by the press about his refusal to act upon the recommendations he had received from the JSC over a year ago. He was quoted in the press as follows: ‘I withheld approval because I sent recommendations to the present Chancellor who has agreed to look at them and resubmit a list to me.’ This statement demonstrates a shocking misconception of the true constitutional position,” Nandlall told this newspaper.

He said that while he does not hold the President responsible for this “lack of understanding” of the Constitution, since he is not a lawyer, he must be held responsible for continuing to retain in office, an Attorney General, “who is demonstrably incapable of advising him properly on these matters.”

Article 128 (1) of the Constitution states, “The Judges, other than the Chancellor and Chief Justice shall be appointed by the President who shall act in accordance with the advice of the Judicial Service Commission.”

According to Nandlall, the use of the word “shall” in Article 128 (1), clearly imposes upon the President, a mandatory obligation to act, in accordance with the advice of the JSC. “In other words, the President has absolutely no power or authority to question or to second-guess the advice of the JSC. To do so, would be to usurp the functions of the JSC,” he said.

Nandlall, who is also a PPP/C MP said too that by making recommendations to the Chancellor, who is, ex officio the Chairman of the JSC, the President may have violated Article 226 (1) of the Constitution.

The Article states: “save as otherwise provided in this Constitution, in the exercise of its functions under this Constitution a commission shall not be subject to the direction or control of any other person or authority.”

He said it was clear that the President, intuitively, believes that the recommendations of the JSC must find his acceptance or approval. That, Nandlall said is not so. “When these recommendations are received from the JSC, the President has only two options. Firstly, he must appoint in accordance with those recommendations or, secondly, he can exercise an option, which Article 111 (2) of the Constitution offers him. Article 111 (2) states that the President may refer the recommendations from the JSC back to them for reconsideration,” he asserted.

According to Nandlall, when this is done, the JSC will have to reconsider the recommendation and in so doing is free to change it and send a new list to the President or “they can reconsider it, do not change it and send it back to the President, this time the President must act on it.

“In short, it is clear that the President has no power to sit on the recommendations of the JSC and not act; it is equally clear that he has no authority to make recommendations of any type to the JSC, other than send back their own recommendations for reconsideration. Therefore, on both counts, President Granger is guilty of violating the Constitution.”

Nandlall told the Sunday Stabroek that it was obvious that the President was not happy with the recommendations, which came from the last JSC, hence his refusal to act.

“It is to be noted, that the President did not send back to the JSC the recommendations, which came to him, as he can do under Article 111 (2), but the President has made his own recommendations to the JSC. This is absolutely wrong. Unless this is publicly condemned and perhaps challenged in the courts, the President may feel that he is empowered to tell the JSC whom he wishes them to recommend to him for appointment as judges. This will make a mockery of the entire constitutional process,” Nandlall said.

He said there was another dimension that in his view exacerbates the wrong being committed. “It is clear that the President is aware that he is sending ‘recommendations’ to a differently constituted JSC, essentially, requiring them to review and, presumably, alter the recommendations of their predecessor. It is highly unlikely that the JSC has the jurisdiction and the legal authority to review recommendations of a differently constituted JSC, moreover, the jurisdiction to change them. The constitution does not contemplate these machinations. It is akin to forum shopping,” he said.

Nandlall later raised questions about the changing of the recommendations of the JSC’s predecessor.

“Should this JSC arrogate unto itself a power to change the recommendations of its predecessor and change the names, for example, of the persons previously recommended, to satisfy ‘recommendations’ of the President this would be tantamount to the President choosing whom to appoint as judges. This would simply be a vulgar abuse of the constitutional process,” he charged.

In November last year, Senior Counsel Ralph Ramkarran had accused Attorney General Basil Williams of “shredding the Constitution” by stating that President Granger had discretion in deciding whether to appoint judges recommended by the JSC.

Ramkarran pointed out that in 2001 the authority of the JSC had been strengthened and the discretion of the President in appointments was removed by the substituting of the word “shall” for “may”.

Said Ramkarran, “The AG seeks to confer on the President an obligation to second guess the JSC which the Constitution does not. This is a public shredding of the Constitution, which needs urgent clarification by the President or Prime Minister. A statement in the National Assembly would suffice. Otherwise the public pronouncements of the AG would be taken as the official policy of the government.”

The President, when quizzed by reporters shortly after the two judges took the oath of office, informed that he had received some names for appointments from the JSC but had withheld approval pending the review and advice of the new Chancellor. “I withheld approval because I sent the recommendations to the present Chancellor, who has agreed to look at them and resubmit a list to me. As soon as I get that list, I will be able to act. So I did decline.  I saw the list, and I received some information, and on the [basis] of that information, I sent it to the present Chancellor and I am awaiting her advice,” Granger said.

The President was asked about the concerns expressed about the nonfunctional Guyana Court of Appeal. “I am confident that the new Chancellor is aware of the shortages and as quickly as the JSC could meet and submit to me, I would move ahead. I have no interest in perpetuating a situation in where there are insufficient judges. The backlog is being built up and the swearing in of the Chancellor and Chief justice is a step in the right direction,” he asserted. “So I expect that as soon as the JSC makes its recommendations I will be able to give approval and move ahead. I think the crisis …will resolve itself in a few days or weeks,” he added.

For her part, Justice Cummings-Edwards told reporters that addressing the shortage of judges was key on her agenda and that a meeting of the JSC will be convened shortly.  She explained that the full complement of the Court of Appeal is five justices, while three are required to hear appeals on the Bench.

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