Following a recent report in Stabroek News that the Judicial Service Commission (JSC) will be advertising the vacancies existing in the judiciary and magistracy, Attorney General (AG) Anil Nandlall SC said it augurs well for transparency and accountability.
He said it is welcoming news as it represents a move away from the unfair traditional manner of filling those vacancies which were based on “selection,” thus creating an unfair playing field for applicants.
Some of those potential applicants he explained, would have been equally qualified as those selected, but not given the opportunity to make applications, because of the traditional process which was selection-based.
Nandlall was at the time addressing the topic on his weekly Tuesday night Facebook programme last week—Issue in the News—on which he referenced a Stabroek News article published that Sunday of the JSC’s intention.
In lauding the reported move by the Commission to have the vacancies made public and inviting applicants by way of advertising, however, the AG in the same vein said that the Commission must now also move to ensure that the various vacant positions are swiftly filled.
He said this as he underscored the shortage of judges in both the High Court and Court of Appeal; as well as magistrates.
On this new move to advertise the vacancies, Nandlall underscored that the JSC, “like every other State agency, is funded from public monies and is expected to act accountably and transparently.”
He said that this is expected of the judiciary in the same way that the other two arms of government—the executive and legislature—are held to a high standard in respect of being accountable and transparent.
He said that every other State agency has to be held to this standard; making the point that the judiciary—both financially and functionally—is no exception to these standards.
Gone are the days for secrecy he said, while adding that the democratization across the globe no longer permits such processes, he said.
Nandlall who is also Minister of Legal Affairs and head of the Bar, highlighted that the Constitution outlines the qualifications for judges, noting that “anyone who has seven years of standing qualifies to be a judge of the High Court.”
Against this background, he rhetorically enquired on what basis it was that persons could have been selected for appointments “by a few people,” advancing that what that would mean, is that though one may be qualified, they may not meet the “subjective invitation of those wielding the power to recommend appointments.”
Discriminatory
This the AG said is a “discriminatory” process against an applicant who is otherwise qualified, just as one selected by the Commission; while reminding that the Constitution itself prohibits discrimination of any form.
“So, from the moment you have a process whereby one or two persons invite potential applicants to apply, thereby depriving others who are equally qualified, the opportunity to apply—because only those who are invited can apply—then it is discriminatory against those who are not invited, but are qualified,” the AG declared.
He heavily condemned this traditional position, while expressing his pleasure that the judiciary has reportedly embraced change.
In noting that the applications will now be public, Nandlall expressed the hope that the pool of applicants can be widened to even persons outside of Guyana, as he cited the Commonwealth and Caribbean.
On this point he said that the intention is not to confine applicants to only Guyanese, but to extend the applications “to all and sundry,” who he said are qualified and desire to be part of Guyana’s judiciary.
He also expressed the hope that when persons are being assessed for promotion, or elevation, that performance must form part of the assessment criteria.
Regarding the swift filling of the vacancies, the AG said that while he recognizes that there had been a long hiatus between the expiration of the previous Commission and the current one, there is need for the Commission to move with alacrity in executing its work.
He said this while underscoring the point that it was members of the judiciary themselves who had publicly lamented the vacancies which they repeatedly emphasised needed to be filled, to aid its efficient functioning.
Nandlall said it is therefore expected that the JSC would proceed with swift dispatch in addressing the existing vacancies.
The AG said that Berbice has been without a Land Court judge for the longest while; a void which he said needs to be filled as early as possible; while pointing out that there are also numerous vacancies in the magistracy, High Court and Court of Appeal.
He said he hopes the JSC “appreciates the monumental task with which they are shouldered.”
Background
The August 20 Sunday Stabroek reported sources as saying that as part of its efforts to fill the judicial vacancies that have for years delayed hundreds of cases here, the JSC will set aside its tradition of inviting persons it believes are qualified and instead, advertise for candidates.
Since its reconstitution last month, following a gap extending back to 2017, questions have been raised and calls made for the JSC to advertise widely for judges and to publish the names of candidates prior to appointment, so that they can be vetted.
This call came from attorney Arud Gossai and public commentator Ramon Gaskin, on the heels of the members of the Commission being sworn in on July 14th; asking for the modalities regarding advertisement to be made public.
On behalf of Gossai and Gaskin, the law firm of Satram and Satram had written to all members of the Commission making an appeal for the objective criteria to be applied and other steps be taken to assure transparency prior to making any appointments.
They have threatened legal action if the process does not unfold in the public eye.
They have opined that unless the vacancies are advertised, “the Commission can never be properly satisfied that it has attracted the most suitably qualified candidates.”
Gossai and Gaskin have said through their lawyers, that while they are aware of the practice, rooted in the traditions of England that the Head of the Judiciary invite suitably qualified persons to join the Judiciary, that practice is inconsistent with Guyana’s Constitution, particularly Article 129.
Criteria
Regarding criteria for appointment, Gossai and Gaskin had said that this must not only be done publicly in the interest of transparency, but objectively, as the Commission ought to be aware that its decisions will impact thousands of litigants and potential litigants who will not be consulted in the appointment process.
As a result, the Commission has a heightened duty of transparency and accountability in any appointment process it embarks upon or employs, they say.
The law firm said that the applicants do not enjoy any right of confidentiality when applying for a Constitutional office.
“The right of the public to ensure compliance with the Constitution displaces any such notion of confidentiality, if it does exist,” the firm said; adding that the appointments are not private in nature.
The JSC was reconstituted after a gap extending back to 2017 and across two different administrations.
Questions have been raised in the past as to how judges have been appointed and preferred. It has been contended that these decisions are not transparent and reflect subjective choices by members of the JSC. Advertising for judges is an issue that has been ventilated before.
