Constitutional Commission agrees on recommendations to strengthen independence of judiciary
By Desiree Jodah
In a session which at times could be described as stormy, the Constitutional Reform Commission (CRC) on Wednesday agreed to make a number of recommendations which would contribute to the strengthening of the independence of the judiciary. The decisions were based on proposals submitted by a sub-committee of the CRC, which was tasked with looking at the submissions, including those the Bar Association had made on the subject. The sub-committee's members were Miles Fitzpatrick, SC, Dr Rupert Roopnaraine, Jean La Rose and Moses Nagamootoo, before he resigned from the commission. Among the recommendations the CRC agreed on by consensus, following the discussion which was led by Fitzpatrick, were the isolation as far as possible of the judicial system along with its appointment and promotion processes from party control and influence. The commission, however, by an 8-7 vote rejected a recommendation which would extend the composition of the Judicial Service Commission (JSC) to include a member nominated by the Speaker of the National Assembly, a member from the Law Department of the University of Guyana and the chairman of a proposed Human Rights Commission. In opposing this recommendation, Vidyanand Persaud, who represents the Hindu community, pointed out that it was based on a misplaced apprehension that there was a crisis of confidence in the judiciary. He observed that the present composition of the JSC compared favourably to that of other territories in the region and that the appointment system did not compromise the independence of the judiciary. The CRC also failed to agree on a proposal that called for the JSC and not the Public Service Commission to be responsible for the appointment of the support and administrative staff of the judicial system. In urging the CRC to support this recommendation, Fitzpatrick had pointed out that at present, the registrar of the Supreme Court did not report to the chief justice on administrative matters but to the head of the Presidential Secretariat. In support of his assertion, Fitzpatrick cited the example of the appointment of a senior police officer as deputy registrar, which he said had been made without the knowledge of the chief justice. Reepu Daman Persaud, one of five representatives of the PPP/Civic on the commission, denied that the registrar reported to the head of the Presidential Secretariat, saying that she reported to the Office of the President at least four times a week. However, Bernard DeSantos SC, another PPP/Civic representative and a former attorney-general, said that the PPP government had inherited the practice from the previous administration. Pressing for a decision, Fitzpatrick urged that the practice should be changed and wanted a vote on the issue. Persaud, on the other hand, suggested a deferral of any decision being made at the time so as to allow for the proposal to be studied. He claimed it was a new proposal and not part of the sub-committee's proposal. It was at this point that the adjournment was taken and a compromise recommendation was worked out. The recommendation calls for the JSC, in addition to its responsibility for appointing members of the judiciary, to be given the responsibility for appointing the registrar and deputy registrar of the Supreme Court Registry and any other professional officers of the Supreme Court staff. Another recommendation which generated lively discussion was that which called for the judicial system to be administratively autonomous and funded by a block vote out of the Consolidated Fund and that the block vote would be operated in accordance with the practices of sound financial and administrative management by such rules and regulations as approved by the Parliament. The second part of the recommendation was proposed by CRC Secretary, Haslyn Parris, who is one of three representatives of the PNC, to overcome concerns which had been raised by Persaud. Other recommendations hammered out during the discussion were related to proposals made by CRC Chairman, Ralph Ramkarran, SC. Ramkarran's proposals sought to have Parliament give consideration to enshrining in the Constitution provisions which would require judges to give their decisions within a certain period and for the appointment of recorder-type judges. During discussions on the proposal related to the delivery of the decisions, Fitzpatrick pointed out that in the past such directions were regarded by the court as indicative rather than mandatory. As a consequence it was agreed to recommend that the Parliament should give consideration to a period when judges should give their decisions. Also, the commission agreed to recommend to the parliament, subject to its consultations with the three local legal experts assisting it, that there should be some detailed description of judicial misbehaviour. Another proposal which generated discussion was that which called for retired judges to return to practice at the Bar. Vidyanand Persaud pointed out that such a prohibition was in the Code of Ethics of the Bar Association and wanted the principle enshrined in the Constitution. Reepu Daman Persaud agreed with the prohibition on retired judges on the grounds that such a practice would give rise to the perception of unfairness. He also disagreed with the proposal that judges should continue to receive their full salary after retiring from the bench if they were to live with some dignity. His objection was based on the ground that the trade unions would want to extend the category to other groups of workers. A proposal related to this issue which was made during the discussion was that of raising the retirement age for judges as a way of extending their earning capacity. The recommendation to be made by the CRC will call for the retirement age for judges of the High Court to be raised from 62 to 65 years and that of the judges on the Court of Appeal from 65 to 68 years. It also will propose that because of the importance of the emoluments of judges to the independence of the judiciary, the Parliament should give consideration to having the emoluments set at a level that would obviate the necessity for retired judges to return to practice at the Bar. The CRC also agreed that it would recommend to the Parliament that the necessary procedures be put in place for the Caribbean Court of Appeal to be the Court of last resort for Guyana, thus superseding the Guyana Court of Appeal.
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