An independent judiciary is the sine qua non of a democratic society. Hence, every legal system in the civilized world, either through the medium of written constitutions or conventions has created a strong institutional framework designed to secure, protect and strengthen judicial independence. Guyana is no different. Ours is expressed in our Constitution. Article 122A states 122A (1), “All courts and all persons presiding over the courts shall exercise their functions independently of the control and direction of any other person or authority; and shall be free and independent from political, executive and any other form of direction and control.
(2) Subject to the provisions of articles 199 and 201, all courts shall be administratively autonomous and shall be funded by a direct charge upon the Consolidated Fund; and such courts shall operate in accordance with the principles of sound financial and administrative management.”
Article 122A is accompanied by a series of constitutional mechanisms designed to make the judiciary, self-regulatory, functionally automatous and insulated from any influence or pressure from any other person or authority. The judiciary is financed from a direct charge on the Consolidated Fund and therefore its financing does not require parliamentary approval. The appointment, dismissal and disciplining of judicial officers are all the subject of express provisions and procedures set out in the Constitution, which ascribes these functions to be performed by another group of independent constitutional tribunals, with the executive playing no more than a ceremonial role.
Prior to 2015, the judiciary’s budget was presented by the Attorney General to the National Assembly. This budget was prepared exclusively by the judiciary, in consultation with the Ministry of Finance. Though the final product was presented by the Attorney General to the National Assembly, the AG would have had no input whatsoever into that budget. That dispensation existed for 50 years without a single complaint ever made by the judiciary of the executive’s interference with its budget. This procedure was changed by the new administration. The process now is for the judiciary to submit its budget to the Clerk of the National Assembly and for the first time, the judiciary’s budget has been cut by the Minister of Finance on the floor of the National Assembly every time it was presented, depriving the judiciary of hundreds of millions of dollars. This constitutes an assault on the financial independence of the judiciary.
Over the last 22 months, Chancellor (ag) Carl Singh, Chief Justice (ag) Ian Chang, Justice of Appeal B S Roy and Puisne Judge William Ramlall have all retired. Additionally, the Family Court, constructed by the PPP administration, became functional in 2016. This court has pulled away two judges from the High Court who are now functioning only in the Family Court. President Donald Ramotar increased the statutory complement of High Court judges from 12 to 20. Despite this exodus, this administration is yet to appoint a single judge thus far, although the President is in receipt of recommendations from the Judicial Service Commission (JSC) since February 2016, to appoint two judges to the High Court and two to the Court of Appeal. The Court of Appeal, for the first time since 1966, has not sat for well over six weeks. For over a year prior to that, the court, which is a three-judge court when it sits, had only two full-time judges attached to it. Every time that court sat, it was forced to borrow a judge from the High Court, putting great pressure on the High Court, which is already short staffed. The President took almost one month to simply swear-in two judges appointed to act in the offices of Chancellor and Chief Justice, respectively.
At the swearing-in ceremony of these two judges, 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. While I do 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.” The use of the word shall in the article, 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. Indeed, 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. Article 226 (1) 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.”
It is clear that the President, intuitively, believes that the recommendations of the JSC must find his acceptance or approval. That 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. When this is done, the JSC will have to reconsider the recommendation. In so doing, they are free to change it and send a new recommendation to the President, or they can reconsider it, 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. It is obvious, that the President was not happy with the recommendations, which came from the last JSC, hence his refusal to act upon them for over a year. It is to be noted, that the President did not send back to the JSC the recommendations which came to him, but 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 would make a mockery of the entire constitutional process.
When one adds to this a challenged Attorney General’s constant scandalizing and contemptuous verbal assaults on judges, both in the courtroom and in the press, coupled with his incredible attempts at subsequent denial, thereby further insulting the integrity of the judges, one cannot help but conclude that judicial independence is under siege.
Mohabir Anil Nandlall, MP