The failure of President David Granger to reconstitute the Judicial Service Commission (JSC) in a timely manner has been met with dissatisfaction from newly-elected Presi-dent of the Bar Association of Guyana Teni Housty, who said it should have been back in operation “day before yesterday.”
During an interview with Sunday Stabroek, Housty, who has been practising law in Guyana since October, 1996, underscored the importance of the JSC and assured that it is very much on the radar of the Association’s new Executive.
“The absence of a Judicial Service Commission has had a debilitating effect…on the process of the administration of justice in Guyana and it is particularly felt at the level of the Court of Appeal, where we only have three judges,” he said.
Those judges are Chancellor (ag) Yonette Cummings-Edwards and Justices Rishi Persaud and Dawn Gregory. Three appellate judges are required when the Full Bench of the Court of Appeal is in session.
According to the Constitution, the JSC is to comprise the Chancellor, who is the Chairman, the Chief Justice, the Chairman of the Public Service Com-mission and such other members appointed in accordance with provisions listed in Section 2 of Article 198.
It states, “The appointed members shall be appointed by the President as follows, that is to say – (a) one from among persons who hold or have held office as a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or a court having jurisdiction in appeals from any such court acting after meaningful consultation with the Leader of the Opposition and (b) not less than one and not more than two from among persons who are not attorneys-at-law in active practice, after the National Assembly has meaningfully consulted such bodies as appear to it to represent attorneys-at-law in Guyana and signified its choice of members to the President.”
There was a delay at the level of the Parliamentary Committee on appointments with respect to the acceptance of an outstanding name. The committee was able to meet earlier this month and the name which was submitted by the Bar Association was accepted. However, given the recent rulings of the Caribbean Court of Justice (CCJ) in the no confidence case, the reconvening of the National Assembly will be delayed. The name will be included in a report that is submitted to the National Assembly. Once the report is adopted, so is that name. Once this is done, it is the responsibility of the President to reconstitute the JSC by swearing in the office holders named in the Constitution and the name or names accepted by the National Assembly.
Housty, speaking from his Middle Street office, stressed that when Justices Rafiq Khan SC and former Magistrate and University of the West Indies lecturer Christopher Arif Bulkan sat on the bench last year, the court was moving at a good pace in the disposal of cases. The JSC, before its life came to an end on September 30th, 2017, had interviewed both men and recommended them to the President.
“They helped to accelerate the hearing of several matters,” he said, before endorsing Senior Counsel Stephen Fraser’s call for the timely convening of a JSC. Fraser, during his acceptance into the Inner Bar on June 8th, added his voice to the numerous calls being made for the body to be reconstituted.
“The administration of justice in Guyana requires it as a matter of urgency and whatever we in the Bar can do to facilitate that, we will… [we can] start with comments [and] enquire…,” he added.
Asked whether he has discussed the issue with his predecessor, Kamal Ramkarran, he reminded that the Association’s position on the issue is on record and said that the intention is to maintain the momentum started by the old Executive over the past two years.
With regards to meeting or writing the Attorney General or the President on the issue, he said that while that is on the Association’s agenda of activities, he will not identify a specific act or approach that is likely to be used. “It’s definitely needed,” he emphasised.
Fraser touched on the issue during a special sitting of the Full Court of the Supreme Court of Judicature, which was held to admit himself and four other attorneys to the Inner Bar.
“…If I have one hope…is that the Judicial Service Commission be constituted….” he said to the packed courtroom.
He reminded the court of two constitutional challenges that resulted from the fact that there was no constituted JSC at the time. The present state of affairs and those two cases, he said, share a common thread.
According to Fraser, for a period of 18 months to two years, “I felt as if the practice of law was like a sewing machine. Cases came, were dealt with… [But] my friend Rafiq was no longer in the Court of Appeal. My friend Rafiq, I am sure, would still be on the Court of Appeal today were there a functioning Judicial Service Commission and I am sure that today we would have still been enjoying a wonderfully functioning judicial system”.
Asked if there was even such a lengthy delay during his time on the bench, Housty said that he could not recall, before later saying that there have been lulls from time to time.
He opined that in those years, the Commission was functioning properly. “From my recollection it functions but we have to have it to make sure it functions. That’s the first step,” he posited.
According to Article 199 of the Constitution, the JSC has the power to make appointments of judicial and legal officers and to remove and to exercise disciplinary control over persons holding or acting in such offices. Such persons include the office of the Commissioner of Title, Magistrates, the Director of Public Prosecutions, the Deputy Director of Public Prosecutions, the Registrar of the High Court, the Deputy Registrar of the High Court, the Registrar of Deeds, the Deputy Registrar of Deeds and such offices connected with the courts of Guyana, and appointments for which legal qualifications are required, as may be prescribed by Parliament.
The JSC also plays a critical role in the selection of judges.
