Appointment of Chancellor, Chief Justice
Govt withdraws thorny proviso
Bill unanimously passed

By Patrick Denny
Stabroek News
June 22, 2001

The government yesterday withdrew a controversial proviso on the appointment of top legal officers paving the way for the National Assembly to enact constitutional changes which will strengthen the independence of the judiciary.

The bills passed yesterday, enjoyed the support of all the parliamentary parties and were piloted through their second and third readings by Parliamentary Affairs Minister, Reepu Daman Persaud,

The first bill ? Constitution (Amendment)(No 4) Bill 2001 ? which contained the controversial proviso - was approved by 58?0. When he moved the bill, Persaud rejected allegations that the proviso had been inserted clandestinely. He conceded that it had not been agreed during the normal process of consultations but pointed out that the bill was circulated ahead of the others so that the other parties could be aware of the inclusion. He contended that it was included with the best of motives as the original amendment could result in a constitutional crisis.

The proviso had said that if after two months the President and the Opposition Leader could not agree on the appointment of a Chancellor of the Judiciary or Chief Justice, the President would go ahead and make the appointments taking account of the Opposition Leader's views. The PNC REFORM (PNC/R) had said it would not support the bill unless the proviso was withdrawn. The bill required two-thirds support from the National Assembly to be passed and could not be approved without the PNC/R's backing.

PNC/R front-bencher, Clarissa Riehl in expressing her party's support for the bill - less the proviso - noted that among the amendments was one dealing with the Preamble to the Constitution which she says exhorts the political leaders to work towards fulfilling the aspirations of the Guyanese people.

She said too that the amended Preamble sought to weave the different realities into one, charging that the government was concentrating only on the building of wood and concrete structures. But she said that it was not the structures that were important but what happens behind their doors.

Riehl urged the government to create the environment in which the Guyanese people celebrate their diversity rather than use it as a weapon against each other.

The bill amends 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 power 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.

Among other things, the bill provides for the Chancellor of the Judiciary and the Chief Justice to be appointed by the President, "acting after obtaining the agreement of the Leader of the Opposition". The withdrawn proviso had sought to alter this amendment.

The bill 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 appointments.

The Constitution, before the amendment, provided that the President need only consult with the Leader of the Opposition whether making substantive or acting appointments to these positions.

With regards 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 Commission".

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".

Riehl said that this innovation would allow for the Judiciary to effectively tackle the backlog of cases.

In tandem with the removal of the provision allowing the extension of the tenure of judges, 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.

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) now vests in the JSC the power to appoint the Director of Public Prosecutions. Before the amendment, the President exercised this right under article 203(1) acting in accordance with the advice of the Public Service Commission tendered after the Commission had 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. Riehl posited that this conflicts with the bill delinking the Deeds Registry from the regular Public Service which vests this authority in the Attorney General and Minister of Legal Affairs.

In the event that an acting appointment is to be made to the office of Director of Public Prosecutions, the President is required to do so on the advice of the JSC.

With regards to the independence of the Auditor General, the 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.

The amendments contained in the second bill - Constitution (Amendment) (No 5) Bill 2001 - now elevate the regulation of the Guyana Defence Force (GDF) and the Guyana Police Force from the Laws of Guyana to the Constitution. This bill was passed by a 57-0 majority.

The elevation of their regulation to the Constitution, Persaud said was made at the request of the representatives of army and the police when they appeared before the Constitution Reform Commission (CRC), which took the recommendations on board.

The amendment to article 197 states that the objectives of the defence and security policy of the state is to "defend national independence, preserve the country's sovereignty and integrity, and guarantee the normal functioning of institutions and the security of citizens against any armed aggression".

It also provides for the appointment of Disciplined Forces Commissions to examine as necessary "the structure and composition of the disciplined forces to give effect to the need for the composition of the disciplined forces to take account of the ethnic constituents of the population."

PNC/R parliamentarian Raphael Trotman, in supporting the bill, hoped that a commission to look at the Police Force would be established quickly as it had been coming under severe criticism for not discharging its mandate while others had been praising it for going beyond the call of duty.

Noting that one of the functions of the defence forces commission would be to inquire into its structure and composition, Trotman said that he was heartened by President Bharrat Jagdeo's statement that there was no policy of discrimination in the type of persons recruited.

Trotman also suggested that the concept of Community Policing needed further developing and the establishment of these groups regularised.

The bill amending the Constitution to provide for the establishment of four sectoral committees, a standing committee on constitutional reform and an appointive committee generated the most contentious debated.

Region Seven's parliamentary representative, Judith David, clashed with Indra Chandarpal, former Human Services and Social Services Minister, when in her maiden presentation, she accused the government of not having the required policies to address the problems of HIV/AIDS, the elderly and women and children. She called the old-age pension now being paid as "minuscule".

She urged the National Assembly to ensure that the committees to be established benefit the Guyanese people.

Chandarpal lashed backed at David amid noisy heckling from both sides that the pension was adequate given the $240 being paid when the PPP/Civic came to office in 1992. She asserted too that it was her government which established national commissions on the elderly, women, children and the family which were charged with devising solutions to the problems facing their target groups. A drop-in home for street children which is to be replaced with a home for them was another PPP/C initiative, she boasted.

PNC/R MP Stanley Ming made his maiden intervention during this discussion. He observed that over the years the sectors for which the committees are to be established suffered under this and previous administrations from indecision and unwieldy bureaucratic procedures. Those areas are foreign relations, natural resources, economic services and social services.

He said that he shared Persaud's sentiment that they augured well for inclusion and should provide the mechanism which could minimise the mistakes made in the past.

The Standing Committee on foreign relations, according to Persaud, would be able to coopt experts who could assist its work. The working of the consensual mechanism in the amended article 127 is one area, he said, should be reviewed to ensure that it works as intended.

The other committee to be established would make appointments for approval by parliament to the various commissions which are to be established.

The bill was passed by a 57-0 majority.

Not considered so as to allow further discussion between the parties is a bill validating the acts of the last parliament as a result of a ruling by the High Court that the 1997 elections were invalid.

The amendments to the Constitution contained in the three bills were made on the recommendations of the Constitution Reform Commission. The recommendations were approved by the parliamentary Oversight Committee during the last parliament. For reasons which until now the government has not fully explained the amendments were not tabled in time for enactment by the last parliament. However, President Jagdeo and PNC/R leader, Desmond Hoyte, agreed that they should be passed by the present parliament. They had set a one-month time frame from the time the parliament was convened on May 4. No reason has yet been given why the deadline was not met.