Constitutional reform and the judiciary
By Brynmor T.I. Pollard, S.C.
Stabroek News
September 12, 1999
Part 1
This contribution is intended to be a follow-up on a Stabroek News editorial a few weeks ago highlighting the recommendations of the Constitutional Reform Commission relating to the judiciary as follows -
Appointment of Judges
(a) The Commission recommends that the appointment of the Chancellor and the Chief Justice of the High Court should be made by consensus. It is not clear what is intended by this recommendation. Under the existing provisions of the Constitution the Chancellor and the Chief Justice are appointed by the President, after the President has consulted with the Leader of the Minority Party. It is to be appreciated that there is no
constitutional requirement for agreement on the appointment. If, as is recommended by the Constitution Commission, these appointments must be made through a consensus mechanism, is the recommendation calling for a consensus or agreement between the President and the Leader of the Minority Party or does it go further to envisage a consensus being reached among a wider category of persons, for example, involving the leaders of other political parties represented in the National Assembly even though one of the principles enunciated in the Commission's Report is that "the appointment and promotion of Judges should be reserved, as far as possible, from all party control?"
b) The Constitution Reform Commission recommends that the Constitution must leave no doubt that the President is obliged to make appointments of the judges (other than the Chancellor and the Chief Justice) acting on the advice of the Judicial Service Commission. In my view, the existing constitutional provision does not require elucidation or clarification. The existing provisions of the Constitution of Guyana reflect the language of the constitutions of other Commonwealth countries. The fact that in Guyana there have been occasions where the advice of the Judicial Service Commission in this regard may not have been acted upon does no credit to advice to the contrary which may have been tendered to the President. The words "acting on the advice of" in Commonwealth constitutions do not mean that the advice is advisory and need not be taken. The position is the same where the Judicial Service Commission tenders advice to the President on extending the tenure of a Judge beyond the age prescribed by the Constitution for retirement. The Constitution Reform Commission, as one of its recommendations, ought perhaps to have attempted a restructuring of the Judicial Service Commission to ensure its independence, as far as practicable, having regard to the other recommendations of the Commission as they relate to the judiciary. This opportunity was lost.
(c) Administrative autonomy of the judicial system
The Commission recommends that the judicial system should be administratively autonomous and should be allocated "a block vote" in the annual budget. In the opinion of the Commission this provision for the Judiciary will allow the Judiciary to be in control of its budgetary allocation so as to obviate the need for the judiciary to go "cap in hand" to the Executive. The intention of the Commission's recommendation is understood but what will the block vote achieve? Does the allocation of a "block vote" for the judiciary avoid the requirement of incurring expenditure under specified heads of expenditure? In any event, who decides on the amount of the block vote, the Chancellor or the Minister of the Finance and the Cabinet? The answer is obvious. According to the structure of the state apparatus it cannot be envisaged that the Cabinet or the Minister of Finance will be supplanted by the Chancellor or the Registrar of the Supreme Court of Judicature for this purpose.
In Australia, the Chief Justice controls the vote for the Judiciary but this does not mean that the Chief Justice determines the amount of the allocation. Under the existing arrangements in Guyana the Chancellor is in control of the vote for the Supreme Court of Judicature but the Registrar of the Supreme Court of Judicature is
designated the accounting officer for the vote under the financial regulatory legislation.
It would be inappropriate to designate the Chancellor as the official accountable. It, therefore, follows that the Chancellor and the Registrar must collaborate in this activity.
It does not seem that the Commission appreciated the implications of its recommendation.
(d) Appointment of Registrar, Assistant Registrar
and officers of the Supreme Court
The Commission recommends that appointments to certain offices in the legal service, for example, the Registrar of the Supreme Court of Judicature and other officers of the Supreme Court of Judicature should be made by the Judicial Service Commission and not by the Public Service Commission.
This recommendation can be implemented as has been done in other Commonwealth jurisdictions by simply extending the Judicial Service Commission's responsibility to include appointment, promotion and discipline of those officers. The Commission can be restyled "The Judicial and Legal Services Commission".
(e) Misbehaviour
The Commission recommends that there should be "a more detailed description of the word "misbehaviour" for the purposes of Article 197 (3) of the Constitution as it relates to a judge providing a ground for removal from office after due inquiry. To attempt a detailed description of the concept of "judicial misbehaviour" would obviously present difficulty. The traditional approach should be retained whereby the misbehaviour of a judge will be determined according to the circumstances of the particular case. In this regard, it might be beneficial if a Judicial Code of Conduct is framed for the Judiciary as has been done in some other Commonwealth jurisdictions. Persistent failure to deliver judgments in a timely manner by a defaulting judge ought to require the attention of the Judicial Service Commission. Recently it was reported that a Judge in the United Kingdom was invited by the Lord Chancellor to relinquish office because of delays in delivering judgments.
(f) Retired Judges practising at the Bar
The Commission recommends that the level of the emoluments and pensions of the judiciary should be enhanced to avoid the undesirability of retired judges practising at the Bar.
In discussions on this matter on previous occasions, it has been the occasion to point out that it would not be unethical or contrary to the traditions of the legal profession for a retired judge to engage in practice in chambers as in other Commonwealth Countries.
The prohibition is directed against a retired judge appearing in court as an advocate.
To be continued
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