Stabroek News

UN rights body member points at failure to confirm Chancellor, CJ

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officers, including members of the JSC, then “there is at least a suspicion of interferen­ce [by] both government and the Opposition Leader in the appointmen­t and career of judges and public prosecutor­s.”

He said it needed to be ascertaine­d whether there is any intention in the ongoing constituti­onal process in order to create self-governing bodies for both judges and prosecutor­s “in order for them to avoid any type of undue influence by other branches of government.”

Responding in the second round, Teixeira said that the JSC comprises the Chair of the Public Service Commission (PSC), the Chancellor of the Judiciary, the Chief Justice, one name submitted by Parliament for a legal person not active in the profession, and a retired lawyer or judge agreed on by both the President and opposition leader.

“That is the Judicial Service Commission, she asserted sating that “even if the President had sway and was able to convince the leader of the opposition to appoint a man he liked, the Commission itself has other persons on it” who may or may not support such a move.

She then clarified to the UN Committee that prosecutor­s are not appointed by the JSC but rather by the Director of Public Prosecutio­ns (DPP) while stating that this office is also a constituti­onal one in its appointmen­t.

She said that the JSC makes a recommenda­tion to the President to appoint by sending a list to him “to appoint,” nothing that if the president has a concern with any of the names submitted, he has to put in writing as is constituti­onally mandated, disclosing his concern with the particular judge.

She noted that thereafter, the JSC will review that concern and respond; noting that is the JSC says it does not accept the President’s objections, the Head of State then has no choice but to appoint.

Meanwhile, regarding appointmen­ts of the two top judicial positions, Teixeira commenced against a historical background, referencin­g the 1999/2001 constituti­onal reform process, stating that “politicall­y, the two major political parties, following a lot of violence, efforts had been made to return to normalcy and to ensure the involvemen­t of the opposition party in that process.

Pointing to examples in the Region, she said that what was built into the Constituti­on for those appointmen­ts to be made by the President after agreement with the Opposition Leader who she noted has a veto vote on the appointmen­t by the President.

Formula

She said that this formula will have to be reviewed. Whether it makes sense she said, will be a decision for the Guyanese people.

Referencin­g Article 127 of the Constituti­on, however, she sought to note that the Chancellor and Chief Justice are to be appointed by agreement between the President and Opposition Leader.

She said that they have both been “unable to agree for some time, resulting in the current situation,” while going on to add that the previous Chancellor and Chief Justice served for years in acting positions, “to their detriment regarding their pensions and other benefits they would have been entitled to,” had they been fully appointed.

“It is not a recent occurrence” she went on, noting that the former Chancellor and Chief Justice after the amendment was made to the Constituti­on “suffered the same fate,” though she did say that such “political interventi­ons” have to be reviewed.

She described the enactment of such amendments as being well-intentione­d “to build harmony and a greater working relationsh­ip between the President and opposition leader.

Teixeira said that notwithsta­nding the issues surroundin­g the amendment achieving its intended purpose, “we want to make it very clear that formula has not resulted in control, direction or lack of independen­ce of the judiciary.”

It was on this point that she said all one has to do is look at the cases before the courts where both the Chancellor and Chief Justice had delivered judgements which did not favour the government and even the previous government now in opposition.

The important question she said, was whether the judges are being fair and dischargin­g their mandate in an impartial and transparen­t manner, noting that the allegation­s that they are compromise­d are “offensive.”

“And I’m sure that the judiciary if they are listening would find that too,” the Minister said.

Responding to Teixeira’s presentati­on, Santos Pais said it was never his intention to be offensive to Guyana’s judiciary.

He expressed the view, however, that notwithsta­nding the history behind the formula used for making substantiv­e appointmen­ts to the top two judicial posts, it is not best that the Head of State and Leader of the Opposition should be meddling in the appointmen­t of judges.

He said that this is so because the question of judges relates directly to its independen­ce, impartiali­ty and security of tenure.

“And you have confessed that first there is politiciza­tion in the nomination of these persons…and the fact that there is an interferen­ce in the appointmen­t itself raises doubts as to the possible way that people perceive the independen­ce of the judiciary,” Santos Pais firmly pointed out to the Minister of Parliament­ary Affairs and Governance.

On this point he said that a distinctio­n needed to be made between the impartiali­ty exercised by the judges and the way the public sees them to exercise this impartiali­ty.

“That’s what concerns me and that’s one of the reasons why I asked what would be the measures to, in a certain sense, increase the confidence of the population of Guyana in their judiciary,” the committee member said; even as he expressed hope that the next constituti­on reform process would address such issues with fresh eyes to see if the time has not come for judges to elect themselves without interferen­ce from other branches of government.

“Then you would be sure that there was no interferen­ce whatsoever by any other branch of the government, except the judiciary itself,” Santos Pais said.

Regarding the committee member’s suggestion about the election of judges, the Minister said that she does not know about that rhetorical­ly asking, “why would a judge be elected? He has to go to the electorate to be a politician?”

“No. That will not happen in Guyana,” she asserted. Justice Yonette Cummings-Edwards and Justice Roxane George SC were respective­ly appointed acting Chancellor of the Judiciary and Chief Justice back in 2016 and 2017, following the retirement of then acting Chancellor Carl Singh, who was also never confirmed despite having served for 12 years. Guyana has not had a confirmed Chancellor for 17 years.

There have been numerous calls over the years for the substantiv­e appointmen­ts to be made.

 ?? ?? Gail Teixeira speaking yesterday (UN photo)
Gail Teixeira speaking yesterday (UN photo)

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