Many may remember that the Judicial Service Commission (JSC) recommended the appointment of prominent lawyer Miles Fitzpatrick as an acting judge in the early 1970s. Mr Fitzpatrick then turned up at State House on the appointed day to be sworn in by the then President, Arthur Chung. The President failed to appear, in his own house. The swearing-in was aborted and Mr Fitzpatrick was never appointed. The Independence Constitution and its 1980 substitute provided that the President “may appoint” judges who were recommended by the JSC.
In 2001 the authority of the JSC was strengthened, and the discretion of the President was removed, by the substitution of “shall” for “may.” Article 128(1) now 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 Service Commission.” Article 128(2) now 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.” These amendments were based on the recommendations of the Constitution Reform Commission (CRC) in 2000.
On 10 October, 2001, the JSC recommended the appointment of former YSM (the PNC’s youth arm) official Mr James Bovell-Drakes as a judge. He was not appointed. On August 12, 2001, the Guyana Bar Association wrote to Dr Roger Luncheon, Head of the Presidential Secretariat and advised him that “Article 128 imposes a mandatory constitutional duty on His Excellency the President to appoint the person whom the Judicial Service Commission has advised, to the office of a High Court Judge.” Legal proceedings were filed by Mr Bovell-Drakes against the government but he was appointed before the case was concluded.
After all of this history, the Attorney General Basil Williams, by letter in SN on November 18, in connection with criticisms made by the PPP upon the failure of the President to act on the recommendations recently made by the JSC for the appointment of judges to the Court of Appeal, responded that the “President must have a higher duty to ensure that the judges he appoints are fit and proper, and were selected and recommended after a transparent process.” He also attributed to the President the responsibilities of “ascertaining the qualifications, suitability, experience, expertise, integrity and absence of nepotism among other considerations.” For justices of the Court of Appeal “the work ethic, the number of judgments written and whether within the statutory time limit would be taken into account.” 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 practices of the JSC in the conduct of its business from time immemorial were borrowed from the judicial authorities in England. As in England, the JSC has always privately and informally invited individual lawyers in private practice or in the service of the state, who they believe are qualified to sit as judges, to apply. In Guyana judges are usually appointed to the Court of Appeal from among senior judges of the High Court or, on rare occasions, from among lawyers in private practice who are invited by the JSC to apply.
There is no law, rule or practice which requires the invitation of applications for judgeships either in the High Court or the Court of Appeal by way of public advertisement, even though the Chancellor indicated in a meeting with senior counsel during last year that he will recommend to the JSC that, where appropriate, necessary and likely to be helpful, public advertisements will be utilized to invite applications for judgeships. The JSC regulates its own procedure and cannot be dictated to or second guessed by anyone, including the President. The JSC is answerable only to a court.
The AG further said in his letter: “In the case of the said recommendations, they were not triggered by any public advertisement of vacancies in the office of judges and inviting applications for appointments thereto. Under the APNU+AFC government the days of handpicking and secret overtures to fill vacancies in the office of judges are over.” This astonishing public admonishment of the JSC and public instructions to a constitutional body as to how it must perform its functions, based on President Granger’s view when he was Leader of the Opposition that vacancies should be advertised, has never, ever, occurred in Guyana, in the worst of times. President Granger as Leader of the Opposition or President may have a view on the matter. But he has no power to instruct the JSC.
But this is not all. On the warpath still and referring to the Chancellor as “the nominee of the PPP/C,” or so it seems, unless clarified, suggests that it would be appropriate in the future to publicly describe the next chancellor as the “nominee of APNU+AFC.”
Article 128 imposes a mandatory constitutional duty on the President to appoint the person whom the Judicial Service Commission has advised, to the office of a High Court Judge.
The language of Article 128 is in the imperative mood.