Stabroek News
June 4, 2001

Legislation to provide for the independence of the Judiciary and the Auditor General was tabled in the National Assembly on Thursday.

The legislation will alter the Constitution to remove from executive control, the appointment of judges and the members of the Judicial Service Commission (JSC). It will also vest in the JSC the authority to appoint the Director of Public Prosecutions as well as his/her deputy, the Registrar and Deputy Registrar of the High Court, and the Registrar and Deputy Registrar of Deeds.

The amendments are being made on the recommendation of the Constitution Reform Commission and were approved by the parliamentary Oversight Committee during the last parliament. For reasons which until now the government has not fully explained the legislation was not tabled in time for enactment by the last parliament. However, President Bharrat Jagdeo and PNC REFORM leader, Desmond Hoyte, agreed that the amendments, which were not enacted should be passed within a month of the new parliament being convened.

Among other things, the bill prescribes that the Chancellor of the Judiciary and the Chief Justice be appointed by the President, "acting after obtaining the agreement of the Leader of the Opposition". It also provides that in the absence of "agreement within two months the President shall make the appointment taking into consideration the views of the Leader of the Opposition".

It also provides that in appointing persons to act in these positions the President must meaningfully consult with the Leader of the Opposition before making the appointment.

The Constitution at present prescribes that the President need only consult with the Leader of the Opposition whether making substantive or acting appointments to these positions.

With regard to the appointment of the High Court judges, the bill amends the Constitution (article 128) to provide that the "President shall act in accordance with the advice of the Judicial Service Constitution.

It also removes the provision at article 128(2) that would allow the President to extend the tenure of the judges beyond the age at which they must vacate their offices. The bill amends article 128 by the insertion of a new clause which provides for the appointment of part-time judges by the President "who shall act in accordance with the advice of the Judicial Service Commission."

With the removal of the provision, which allowed for the tenure of the judges to be extended, the bill now provides, by amending article 197, for the age of retirement for the Judges of the Court of Appeal to be raised from 65 to 68 years. The retirement age of the High Court judges has been increased from 62 to 65 years. The increased age limits will only apply to those judges appointed after the amendment has been enacted.

Article 197 is further amended by the insertion of a new clause which states "it is in the interest of the State to provide such terms and condition of service, including superannuation benefits, for judges that on retirement there would be no need for them to practise at the Bar".

In curtailing the powers of the President to appoint the members of the JSC, the legislation now requires the President in making the one appointment from persons who have held judicial office to do so after "meaningful consultation with the Leader of the Opposition". In making the appointments provided for at 198(2)(b) the President is now required to appoint the person identified by the National Assembly after it has meaningfully consulted such bodies as appear to it to represent attorneys at law in Guyana".

The amendment to article 199(3) provided for in the legislation now vests in the JSC the power to appoint the Director of Public Prosecutions. Under the Constitution the President now exercises this right under article 203(1) acting in accordance with the advice of the Public Service Commission tendered after the Commission has consulted the Prime Minister. The amendment also vests the appointment of the Registrar of the High Court and the Registrar of Deeds and their deputies in the JSC as well. In the event that an acting appointment is to be made to the office of the Director of Public Prosecutions, the President is required to do so on the advice of the JSC.

With regard to the independence of the Auditor General, an amendment to article 223 now provides that "in the exercise of his functions under the Constitution, the Auditor General shall not be subject to the direction or control of any person or authority". It also provides for the Public Accounts Committee to exercise general supervision over the functioning of the office of the Auditor General.