Refreshing to know the Judiciary is coming under the public’s focus

Attorney General and Minister of Legal Affairs, Hon Anil Nandlall, SC, expressed his disenchantment over the country’s inability to confirm appointments to the positions of Chief Justice and Chancellor of the Judiciary of Guyana. He cited the examples of Justice Ian Chang who served as acting Chief Justice for 15 years (20002015) and Justice Carl Singh who acted as Chancellor of the Judiciary for 12 Years (2005-2017). The current incumbents Madam Roxane George SC, and Madam Yonette Cummings-Edward, SC have been acting in the position of Chief Justice and Chancellor of the Judiciary respectively for five years. Mr. Nandlall states that the Guyana constitution (Article 127 (1)) requires the appointment to both positions to be made by the President with the agreement of the Leader of the Opposition. And this process has not worked for the past 15 years. There has not been any agreement between the two leaders on these two appointments.

University of the West Indies Law Professor Tracy Robinson, while advocating the need for ‘executive restraint’ in the selection process of Judges, also advises that Guyana should not wait until constitutional reform takes place to appoint permanently the Chief Justice and Chancellor of the Judiciary but should strive to make those appointments urgently. A related issue is tenure for Judges. The esteemed panelists believe that Judges’ tenure of office should extend until they reach 7075 years of age. However, granting tenure and expanding it to 75 years must be balanced with the need for accountability. How to achieve this balance is still problematic. One solution put forward by Mr. Nandlall is to expand the Guyana Court of Appeal (CoA) with a complement of 5 to 9 Judges, a position consistent with

Article 124 of the Guyana constitution.

On a constitutional question regarding the appointment of the Commissioner of Police on March 30, 2022, Mr. Nandlall told the panel of distinguished legal scholars that the Guyana High Court ruled that the appointment of Police Commissioner Mr. Clifton Hicken by the President was proper. The constitutional requirement of ‘consultation’ with the leader of the opposition did not happen as there was no opposition leader at the time to consult. Given the urgency of the Commissioner’s appointment, the President had to act in his own deliberate judgement in the national interest and make the appointment. It was not a case of ‘necessity;’ there was no opposition leader to consult. The framers of the constitution never intended to handicap the President in the exercise of his duty if there is no opposition leader.

Mr. Nandlall drew the attention of viewers that the Judiciary under the PNC (1968-1992) functioned as an arm of the Party which entrenched party paramountcy into the political system in 1974, and which was integral to the Sophia Declaration. The armed forces were required to swear allegiance to the PNC leader and not to the country. The classic constitutional doctrine of separation of powers never existed; the PNC party controlled the legislative body, the Judiciary, as well as the commanding heights of the economy. One year prior to the Sophia Declaration (1973), the PNC government removed the Judicial Committee of the Privy Council as the Court of last resort and replaced it with the Guyana Court of Appeal (CoA) and justifying that action by contending the Privy Council was a relic of colonialism and a symbol of oppression. Ever since 1973 critics have viewed the CoA as compromised by political alignment.

Mr. Nandlall says that the PPP government initiated about 200 constitutional amendments in 1999-2000 to curb, among other things, some of the powers of the executive and to transfer much of those powers to Parliament. One amendment allows for the President to appoint the Chief Justice and Chancellor of the Judiciary with the agreement of the Leader of the Opposition. Another major constitutional amendment was to make the Caribbean Court of Justice (CCJ) Guyana’s Court of last resort. Fresh on the minds of the PPP about perceptions, if not realities, of political interference, especially during the Burnham rule, in a determined effort to minimize bias, the PPP moved in 2005 under Bharrat Jagdeo’s Presidency to make CCJ, the Guyana’s court of last resort.

That move vindicated, for example, the PPP’s reservations as the CCJ’s rulings that overturned all the election related CoA’s judgments, saved democracy in Guyana. Had it not been for that, democracy would have been crushed in Guyana (the post March 2, 2020, election electoral heist attempts attest to this), with the country becoming a pariah state, and despite the prospects of oil wealth, the country would have plunged into economic and social turmoil

The Belize Judge Hon Godfrey Smith, QC, said that he was satisfied with the selection process of Judges there indicating that the process was transparent, accountable, and fair. He mentioned five cases that the Court ruled against the government as proof of his position. But it was pointed out that those Judges were from other territories and therefore not influenced by local political situation to arrive at their rulings.

Mr. Douglas Mendes, SC, revealed that he was tapped as a Judge in Belize; he did not apply for the position, which was neither advertised, and yet he was appointed a Judge in Belize. The panel indicated that the selection process must include public advertisement, specify the selection criteria, and state the process of selection of Judges.

The panelists agreed that “Time Management” of cases is important and that there should be training for Judges. Professor Robinson said that she was not comfortable with the Chief Justice or the Chancellor sitting as a member of the Judicial Service Commission. That is potentially a conflict-of-interest situation. When asked if a Judge who retires and still has judgments pending, whether he/she could return to decide on such matters, Mr. Nandlall cites a case history of Guyana and then said “no.” However, the Barbados Senator Gregory Nicholls says that Barbados allows a retired Judge to return to resolve those pending cases.

Mr. Mendes, while recognizing that civil society, including the Bar Association should be represented in the Judicial Service Commission (JSC), states that it is also equally important that a member of the executive also sits on the JSC. His reasoning is that it is the executive which is ultimately accountable for public funds and accountable to the public for the administration of justice. Mr. Mendes also states that for misconduct the sanction against Judges is restricted only to removal from office; he suggests that other sanctions be applied such as suspension.

It is refreshing to know that the Judiciary is coming under the public’s focus. All institutions of the state, including the Judiciary, must be held accountable for the decisions they make. The Judiciary is not impervious to criticism.