Last Updated on Wednesday, 19 July 2023, 16:27 by Denis Chabrol
A lawyer and a public commentator on Wednesday warned the Judicial Service Commission (JSC) of legal action if it fails to discontinue the practice of handpicking persons to be appointed judges rather than obey Guyana’s Constitution by advertising the vacancies locally, in the Caribbean and the wider Commonwealth.
“We are aware of the practice, rooted in the traditions of England, whereby the Head of the Judiciary would invite suitably qualified persons to join the Judiciary. This practice is not consistent with our Constitution, particularly Article 129 thereof,” Attorney-at-Law Arud Gossai and public commentator Ramon Gaskin told the JSC through their lawyer.
They are also asking the JSC to appoint persons who will demonstrate the capacity to deliver written judgements in keeping with the Time Limits for Judicial Decisions Act. They cautioned the JSC against appointing Magistrates and current judges who have been failing to deliver decisions and reasons based on the stipulations in the law passed by Parliament.
“It would be a violation of the Constitution for the Commission to appoint or promote sitting Magistrates and Judges who have a history of
not delivering timely judgments,” Mr Gossai said in his letter that was also copied to Attorney General Anil Nandlall.
Relying on Article 129 of Guyana’s Constitution, Legal Practitioners Act , High Court Act and the Time Limits for Judicial Decisions Act, Mr Gossai and Mr Gaskin threatened to take legal action if the process for recruiting judges does not meet their expectations. “Our clients will challenge any decision of the Commission, which does not enjoy immunity from suit, that fails to comply with the Constitution and the ordinary principles of Judicial Review,” Mr Satram said.
In order to ensure that the right persons are appointed judges, Mr Gossai and Mr Gaskin advised the JSC to “request and consider” from potential applicants and other sources evidence that they have been writing decisions and giving reasons or they have the “ability to comply” with the Time Limits for Judicial Decisions Act. That law gives judges a maximum of 120 days for giving oral or written decisions and reasons in civil cases after the hearing, preferably as soon as possible. For appeal cases at the Full Court or Court of Appeal, a judge or each judge of the court is required to give an oral or written decision as soon as possible after the hearing has been concluded or a maximum of 30 days after. If a judge “persistently” fails to comply with that law, he or she can be removed from office in keeping with Article 197(3) of the Constitution.
Mr Satram said in the interest of transparency, his clients were demanding that the criteria which the JSC intends to use as well as the list of applicants be made public. “Because of the public nature of these appointments and its potential impact on public life, our clients demand that the list of potential appointees be published prior to their appointment and that members of the legal profession and the general public be invited to make submissions to the Commission on the suitability of potential candidates,” the lawyer told the JSC on behalf of Mr Gossai and Mr Gaskin.
They contended that applicants for the position of judge 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 appointments are not private in nature,” they said.
Mr Satram, on behalf of his clients, indicated the need for proper screening of candidates by the candidate as judges could not be easily removed from office. “The need for this form of transparency is a legal necessity because once appointed, Judges enjoy security of tenure and immunity from suit, making it virtually impossible to remove them,” they said.
The JSC members are Chancellor of the Judiciary Yonette Cummings, Chief Justice Roxane George-Wiltshire, Retired Chancellor of the Judiciary Carl Singh, Retired Justice of Appeal Beasraj Singh Roy and Chairman of the Public Service Commission Manniram Prashad.