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