Never the intention of the framers of the Constitution for the President to be commanded

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Attorney General Basil Williams

By Basil Williams
Attorney General, Minister of Legal Affairs
LET it be made clear that the APNU+ AFC Government was elected on a promise to the Guyanese people to inter alia, “Restore the Rule of Law.”
Thus, when I read the recent commentary by former Speaker Mr. Ralph Ramkarran, S.C., on the issue of appointment of judges I was taken aback. Firstly, Mr Ramkarran ignored the machinations of his former party- People’s Progressive Party /Civic in removing the checks and balances provided by the division of powers between the offices of the Chief Justice and Chancellor and reposing all powers in the Office of Chancellor.

Moreover, after 2003 when Mr. Robert Corbin, former leader of the People’s National Congress Reform (PNCR) became Leader of the Opposition, in every meeting between him and the President in seeking agreement on the appointment of the Chancellor and Chief Justice, the PPP/C President had always nominated the current Chancellor (ag) for the substantive post, even when former Chief Justice (ag) Mr. Ian Chang was put forward by the Leader of the Opposition.
As a result, there was never agreement and both offices remained acting appointments — the occupants being appointed by the President after meaningful consultation with the Leader of the Opposition. The PPP/C at one time had so craved control of the Judiciary that it had one person occupying both offices of Chancellor and Chief Justice at the same time until proceedings were filed in the High Court challenging it. Justice William Ramlal ruled against it and has since that time been by-passed for elevation to the Court of , despite being the most senior High Court Judge.

In light of these premises, the PPP/C’s President and Chancellor (ag) combined in the process to appoint all Judges and Justices of Appeal except the Chief Justice. Needless to say, anyone aspiring to be a Judge or a Magistrate who did not find favour with the PPP/C, could not see the light of day. And even if one slips through, the Chancellor whose power enables him/her to assign Judges and Magistrates to cases, could neutralise that person.
In this milieu, transparency in the appointment of Judges was an anathema and secrecy shrouded such appointments. Secret appointments to the Bench reached its nadir when a man who was a total stranger to the legal community of Guyana, was secretly recruited and appointed as a Justice of Appeal.

That person then was found to be tainted by the allegation of being “criminous” in no less a place than the English Bar, and was a debilitating injury to our Judicial system. The lack of proper scrutiny by the JSC and the failure of former Presidents under the PPP/C administration to be an effective safeguard as was intended by the framers of our Constitution, combined to produce this ignominious result. And so we arrive at the present junction where it is being contended by both the PPP/C and Mr. Ramkarran that the President is the JSC’s robot; that the JSC’S advice to him is a command, which he must unthinkingly obey and brainlessly appoint.

Nothing could be further from the truth.
Both Clement Rohee and Ralph Ramkarran are relying on the amendment in Article 128(1) of the Constitution, which they contend strengthens the power of the JSC to compel, mandate and command the President to appoint on its advice. Article 128(1) reads- The Judges, other than the Chancellor and the Chief Justice, shall be appointed by the President who shall act in accordance with the advice of the Judicial Service Commission. Incidentally, this amendment was occasioned under the PPP/C watch by Act No. 6 of 2001.
It is contended that insofar as Article 128(1) purports to command the Executive President, it is unconstitutional.  This is so because it collides with the basic structure or framework of our Constitution. In the Indian Supreme Court case of THE STATE-V- KERALA [1973] it was held by a 13-Bench court that the word “amend” means only changes other than altering the very structure of the Constitution.

In other words, there are certain basic features of the Constitution which cannot be altered in the exercise of the power to amend. It is submitted that the basic structure of the Constitution is premised on the doctrine of the Separation of Powers between the three arms of the State, namely, the Executive, Legislature, and the Judiciary. No arm could intrude or interfere with the power of the other.
Thus, the amendment in 2001 to Article 128 (1) is ultra vires the Constitution if it purports to give power to the JSC of the Judiciary arm to command the President who is the supreme Executive authority of the executive arm of the State. See Article 89 of the Constitution which provides:-
“There shall be a President of the Co-operative Republic of Guyana, who shall be Head of State, the supreme executive authority, and Commander-in-chief of the armed forces of the Republic.” It is submitted that the language of Article 128(1) is not mandatory but procedural and discretionary.

In this result, the Court would be entitled to annul the amendment of Article 128(1) on the ground of it being ultra vires the Constitution.  Further, on the text of the amendment itself, the interpretation claimed by Mr Ramkarran cannot be borne out since the President must have a discretion as to how he should proceed to deal with the document put before him. The President may wish to shelve the document with a view to making inquiries to allay fears he may have. He may have personal knowledge as to why he should not sign. In such a case, the President being an Executive President under Article 89, cannot be compelled to sign such a document.

Another point that should not escape our attention is that the language itself places the burden on the JSC to act in a fair, transparent and dispassionate manner in the appointment of persons as Judges; otherwise, the President in the exercise of his power under the very Article 128(1) can serve as the check and balance on the excess of the Commission. The power to appoint Judges vests in the President and the power to advise in the JSC. The word ‘advice’ means that such advice may or may not be accepted and the use of the term ‘shall act in accordance with the advice’ conflict with the word “advice” and leads to an absurdity and must be interpreted to mean ‘may.’

It is submitted that the 1980 Constitution recognized that the Executive President could not be compelled by the JSC and therefore used the following language in Article 128(1), which gives the President a discretion namely: “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.” Moreover, Article 1 11 of the Constitution clearly gives the President a discretion when he is required to act in accordance with the advice or on the recommendation of any  person or Authority by providing that he could refer any such advice or recommendation, back for  reconsideration.