Former Attorney General Anil Nandlall is accusing President David Granger of acting contrary to the constitution by delaying the appointments of four nominees recommended to be High Court judges and at least one other recommended to be an appellate judge, while saying he has wasted an opportunity to rectify the longstanding shortage in the judiciary.
Sources, who did not want to be named, told Sunday Stabroek that the list of High Court nominees has been with Granger for several weeks.
Observers say that while both the High Court and the Court of Appeal would require a lot more appointments, the president would go some way towards helping to alleviate the backlog that currently exists if he acts on the nominations before him.
Nandlall pointed out that the president had failed to act on recommendations of the previously constituted Judicial Service Commission (JSC), made since March, 2016, for two lawyers, comprising State Solicitor/Public Trust Damone Younge and attorney Sandil Kissoon to be appointed as High Court Judges, and for two Puisne Judges, Dawn Gregory and Rishi Persaud, to be elevated to the Guyana Court of Appeal. (Justice Gregory has since been appointed.)
The recommendations were made by the JSC under the chairmanship of the then acting Chancellor Justice Carl Singh. Observers had said too that the fact that no attempt was made to make Justice Singh the substantive Chancellor prior to his retirement at the end of February, 2017, spoke volumes of the government’s view of him and this may have had some bearing on the president’s non-action in respect to the list presented.
According to Nandlall, the constitution “compels the president, either to make the appointments as recommended, or to return the recommendations with a request for their re-consideration. If the latter course of action is adopted by the president and the JSC reconsiders the recommendations but makes no change to it and sends it back to the president, then the president has no option but to act in conformity with those recommendations and make the appointments.”
He added that the constitution does not “contemplate non-action” on the part of the president when such recommendations are made by the JSC. “In this case, the situation is permeated by highly unprecedented irregularities which border on breaches of the constitution, if not, fully fledged constitutional violations,” Nandlall said.
Article 128(1) of the constitution provides that judges, other than the Chancellor and Chief Justice, are appointed by the president, “who shall act in accordance with the advice of the Judicial Ser-vice Commission.” Article 128(2) also provides that “the President shall act in accordance with the advice of the Judicial Service Commission and appoint a person to act in the office of Justice of Appeal or Puisne Judge, as the case may be.”
According to Nandlall, who served as the Attorney-General in the former PPP/C government, as he understood it, the president omitted to act on the recommendations for in excess of one year. “In my view, this by itself is a constitutional violation by omission because, as I indicated earlier, the constitution does not contemplate non-action in respect of recommendations made by the JSC to the president.”
He pointed out that the president is reported in the press as requesting from the new chairperson of the JSC, current acting Chancellor Yonette Cummings-Edwards, “additional information” in respect of recommendations made by a differently constituted JSC. Granger had made this comment to the press shortly after Justice Cummings-Edwards took the oath of office earlier this year.
“This intervention, in my humble view, is violative of the constitution. The JSC is a constitutional commission whose decisions and recommendations cannot be questioned, queried or interfered with by any authority, especially, the Executive. Article 226 of the Constitution is very clear,” he said.
Article 226 states, “… in the exercise of its functions under this Constitution a Commission shall not be the subject to the direction or control of any person or authority.”
Nandlall argued that the president’s inquiry violated this provision of the constitution. “I was therefore surprised when the impression conveyed by the press reports suggested that the current Chairperson of the JSC acceded to the president’s request. If this is so, this concession is not only violative of the constitution but also collides with the doctrine of separation of powers. This is neither healthy for the independence of the judiciary nor our constitutional democracy,” he said.
Nandlall told Sunday Stabroek that the situation has since been compounded by the president appointing Justice Gregory. “It begs the following questions: On what basis was one of the recommendations identified and acted upon but the other three recommendations ignored? And on what basis was one of the two judges recommended for appointment to the Court of Appeal appointed but the other judge not so appointed? Someone needs to answer these questions so as to remove the unnecessary cloud which hangs over this issue,” he said.
He pointed out that the bottom line is that the Court of Appeal has been without a “permanent workable complement” for an extraordinarily long period of time for no good reason. The court was unable to sit as Justice Singh and Justice BS Roy had retired which meant that Justice Cummings-Edwards was the only appellate judge at the time.
Justice Cumming-Edwards has since been joined by acting Chief Justice Roxane George and Justice Gregory on the Court of Appeal. A minimum number of three appellate judges can hear a case at one time but the court should consist of a full complement of five judges. The court has been operating with the minimum number for years and based on information from the legal fraternity, no attempt had been made to bring it up to strength.
According to Nandlall, “this situation must be rectified with every convenient speed.” He informed that he is aware that the Caribbean Court of Justice (CCJ) has “rightly express-ed its concern on this matter as well.”
A member of the legal fraternity while acknowledging that he is concerned about the delay in the appointment of Justice Persaud, express confidence that it will happen at some point. “It will be done,” he said.
No effort by the PPP/C
Nandlall downplayed arguments that the PPP/C made no effort during its 23 years in office to ensure that the Court of Appeal had its full complement of five judges and said that this responsibility lies with the judiciary and not the president.
“The process of appointment of judges is judicially-driven. The president can only act if recommendations come to him. I don’t know that a PPP president was guilty of not appointing to the Court of Appeal judges who were recommended for such an appointment,” he said, before adding that such a situation would not have been right then much less now.
Asked whether the president has the authority to signal to the judiciary that he is dissatisfied with the complement of judges, Nandlall explained that while this is not permissible through the president, it can be done by the Attorney-General, who is also the Minister of Legal Affairs.
“The president, through his AG, can draw to the judiciary’s attention that there are judicial vacancies which should be filled,” he stressed.
He said that the ball in now in the president’s court to increase the capacity of the judiciary by making the necessary appointments.