President has failed, refused to make appointments

– Nandlall

The Parliamentary Opposition is calling on the President to follow the Constitution of Guyana when acting on the recommendations made by the Judicial Services Commission (JSC) for judges to be appointed to the Appeals Court and High Court.

During a press conference on Thursday, former Attorney General Anil Nandlall charged that the President’s actions in the matter have so far not been in accordance with the letter and spirit of the Guyana Constitution.

“To date, the President has failed and/or refused to make those appointments as advised by the Judicial Services Commission, despite repeated calls from the main Opposition party and the Leader of the Opposition himself,” Nandlall charged.

He referred to an article in which the President was quoted admitting that he had deliberately withheld his approval and had asked the new JSC to review the advice tendered last year. He read Article 128 (1) of the Constitution of Guyana to support his contention that the President is acting in breach of the supreme law of the land.

According to Article 128 (1) of the Constitution, “The Judges, other than the Chancellor and the Chief Justice, shall be appointed by the President, acting in accordance with the advice of the Judicial Service Commission.”

The former Attorney General reiterated that this provision of the Constitution does not give the President any leeway to act otherwise.

“This is not a statement that is capable of a misinterpretation by a rational mind. This is as clear as you can get. SHALL, any first year law student will tell you, imposes a mandatory obligation,” Nandlall explained.

He also cited Article 111 (2) of the Constitution, which does give the President some leeway to act if he disagrees with a recommendation. Article 111 (1) states: “In the exercise of his functions under this Constitution or any other law, the President shall act in accordance with his own deliberate judgement, except in cases where, by this Constitution or by any other law, he is required to act in accordance with the advice or on the recommendation of any person or authority.”

Subsection two states: “Where, by this Constitution, the President is directed to exercise any function on the advice or recommendation of any person or authority, he may, in accordance with his own deliberate judgement, once refer any such advice or recommendation back for reconsideration by the person or authority concerned.”

It goes on to state: “if that person or authority, having reconsidered the original advice or recommendation, substitutes therefor a different advice or recommendation, as the case may be, the President shall act in accordance therewith; but save as aforesaid, he shall act in accordance with the original advice or recommendation.”

Nandlall said this thus allows the President to send back the recommendations, and depending on whether the commission reconsiders the advice or not, he has to act accordingly.

He noted that there is thus no provision in the Constitution of Guyana which allows the President to delay acting, especially for over a year.

Considering the proliferation of legal experts at the President’s disposal, Nandlall also queried the quality of legal advice he may be receiving in the matter.

Back in February 2016, the JSC had unanimously recommended that High Court judges Justices Rishi Persaud and Dawn Gregory be appointed to the Court of Appeal, and Attorneys-at-Law Sandil Kissoon and Damone Younge be appointed puisne judges.

Last year, the Commission had recommended the appointment of two judges to the Appeals Court and two lawyers to act as puisne judges. The nominees for the Appeals Court were Justices Rishi Persaud and Dawn Gregory, while the nominees for Puisne Judges were Attorneys-at-Law Sandil Kissoon and Damone Younge.

These appointments are yet to be effected, though there are reports that the process has been started by the commission to compile a new list of candidates.