No JSC For 10 Months: As the Unconstitutionalities Continue


By Mohabir Anil Nandlall, MP, Guyana

It is common knowledge that our constitutional structure embraces the doctrine of Separation of Powers, which divides governmental functions of the State into three main branches, namely, the Executive, the Legislature and the Judiciary.

This doctrine postulates that these three organs, which are ascribed, clearly delineated functions, must be allowed to discharge those functional responsibilities independently, autonomously and freely from any form of extrinsic interference.

However, unlike most Commonwealth territories, in our constitutional matrix, the Executive President is the fountain of all Executive powers within the State. In the purest form of the Westminster model Constitution this responsibility is shared between the Head of Government (the Prime Minister or Chief Minister) and the Head of State (the President or the Queen represented by her Governor General). The Executive President in Guyana represents a unison of the two. As a result, the Executive branch of Government enjoys a significant advantage over the two other organs of government because it controls the financial machinery of the State, and therefore the other two organs depend upon it for their funding, though guaranteed as a direct charge from the Consolidated Fund. The Executive also enjoys the power to elect a Speaker of the National Assembly and dictate the agenda of that National Assembly, as well as, being vested with the authority to make the most powerful appointments within the Judiciary, although bound by certain processes in relation thereto, outlined in the said Constitution.

In recognition of being in this peculiarly advantageous position, it is incumbent upon the Executive branch of Government, in Guyana’s constitutional structure, to ensure that it does not abuse this advantage and that at all times it magnanimously ensures that these constitutional institutions are adequately resourced and appointments to offices within them are timely made. On the contrary, this Administration has been exploiting that advantage.

Puisne Judges

Since, this Administration assumed the reigns of executive Government, it has been in constant confrontation or at a minimum, uneasy peace with the Judicial Service Commission (JSC). I have written several articles detailing the Attorney General’s public refusal to recognise the JSC’s constitutional power to appoint certain officers within the Deeds and Commercial Registry Authority and his refusal to allow those officers to discharge their functional responsibilities. From his public outpourings in the press, it became immediately clear that he only learnt of these powers of the JSC when he assumed Office. One of these officers was forced to seek the protection of the High Court and was eventually vindicated by a Judgment. The other officer was virtually hounded out of office by the institution of fabricated criminal charges, undoubtedly inspired by malice aforethought.

I also wrote several articles highlighting the President’s failure to act, for nearly a year, upon recommendations made by the then JSC to elevate certain puisne Judges to the Court of Appeal and to elevate and to appoint persons as High Court Judges and Commissioners of Title. The shocking response of the Government to my criticisms was that the Constitution does not stipulate any time period for the President to act upon these recommendations. Those who truly understand the language and spirit of the Constitution and the law would tell you that the President is expected to act in those circumstances with every convenient speed. Many have drawn the reasonable inference that the presidential delay was deliberate and intended to await the retirement of certain members of the then JSC.

Guyana Court of Appeal

These political manipulations are designed to undermine the Constitution and our democracy. I have written at length about similar interferences with the Police Service Commission and the Public Service Commission by members of this Government. That these attempts were denounced by rulings from the High Court are well publicised and documented. The unilateral appointment of the Chairman of GECOM cannot be excluded from this constitutional admixture. I say, with respect, that the Learned Chief Justice is hopelessly wrong on this matter, hence, the appeal.

The life of the membership of the last JSC expired since the 30th September 2017 – ten months ago! Thus far, I am unaware of any discernible steps being taken by this Administration to reconstitute the JSC. As a result, there has been a huge constitutional vacuum. No coroner, nor magistrate nor judge could have been, or can now, be appointed. There are two Judges who are currently sitting in the Guyana Court of Appeal who were appointed to act as Justices of Appeal for specified periods. Those appointments will expire within a month. There is no JSC, which can recommend an extension or their replacements. The Attorney General appears blissfully unconcerned about this deplorable state of affairs and seems preoccupied with a countrywide campaign to re-elect himself as chairman of the PNC.

It is against the aforementioned backdrop, that I remain unconvinced that the President’s sudden haste to make substantive appointments to the office of the Chancellor and Chief Justice is accentuated by any genuine concern for constitutional compliance.

In my view, it is driven by a different motive. In sum, with every passing day, I become a little more convinced that this Administration is authoritarian in nature and the democratic norms, traditions and the Constitution are conceptually and ideologically viewed as obstacles in its path.