Constitutional reform and the judiciary
The Constitutional Column
By Christopher Ram
October 17, 1999
Last month Sunday Stabroek published the first part of a feature which was intended as a follow-up to a Stabroek News editorial some weeks before highlighting the recommendations of the Constitution Reform Commission relating to the judiciary. The second part follows below.
Appointment of judges
(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.
This practice is observed in the English-speaking Caribbean countries and in other Commonwealth countries and is supported by the Guyana Bar Association. For some inexplicable reason, the Judiciary in Guyana seem incapable of dealing with the matter or is perhaps even unwilling to do so.
On the allied matter of judicial remuneration, the Guyana Constitution does provide some safeguards and mechanisms intended to bolster the independence of the judiciary.
The salaries, allowances and other conditions of service of judges must be prescribed by law thereby providing an opportunity for Parliamentary scrutiny of executive action and intervention if necessary. Also the office of a judge cannot be abolished if the office is held substantively by the judge. Additionally, the salaries and allowances and other conditions of service of a judge cannot be altered to his or her disadvantage except with the judge's consent, for example, where the judge opts for alternative conditions of service which may be more advantageous in some respects but is less so in others.
In making its recommendations, the Commission advocated higher levels of remuneration for the Judiciary in order to provide better superannuation benefits. There will always be divergent views on an acceptable level of judicial remuneration having regard to the state of the national economy and in comparison with other functionaries in the state sector. This is not a phenomenon peculiar to Guyana. The argument seems to be that payment of better superannuation benefits to retired judges will be an incentive in deterring them from engaging in active practice at the Bar. In England, the maximum pension payable to a judge after twenty years service is one-half of the judge's pensionable emoluments (salary) at the time of retirement. The Lord Chancellor receives one-half of his salary as Lord Chancellor together with one-half of his salary as President of the House of Lords, as pension. In some Caribbean countries, the Head of Judiciary receives as pension his last pensionable emoluments. In the Eastern Caribbean Supreme Court, all of the judges are paid pensions equivalent to their pensionable emoluments at the time of retirement. It has been observed that this condition of service ought to be re-examined because it gives an unfair advantage to judges with a few years of service and, therefore, there should be a requirement of completing a qualifying period of service in the office of judge, for example, twelve or fifteen years' service. In Guyana, a judge, qualifies for the maximum pension (two-thirds of his or her final pensionable emoluments) after fifteen years' actual service as a judge. In the case of a judge who does not complete fifteen years' service as a judge at the time of attaining the age of retirement prescribed by the Constitution, every year of service as a judge is reckoned as two years' pensionable service in computing the judge's superannuation benefits, subject to the maximum pension payable under the Pensions Act. Cap. 27:02. As in the case of a public officer, a judge can opt to receive a reduced pension (instead of the full pension) together with a lump sum payment or gratuity at the time of retirement, in accordance with the statutory formula.
g) Age of retirement
The Constitution Reform Commission recommends a later age of retirement for judges without the benefit of an extension of tenure of office. The independence Constitution of Guyana (1966) provided for a maximum extension of three months to enable a Judge of the High Court to complete the hearing and determination of cases. The tenure of office of a Judge of the High Court could also be extended for a maximum period not beyond sixty-five years as may be agreed with the judge.
The constitutional provision was altered in 1977 to enable the retention on the Bench of the services of Judges of the Court of Appeal for such period to be agreed. It was Guyana (1966) as other Commonwealth Constitutions which provided for a maximum extension of three months to enable a Judge of the High Court to complete the hearing and determination of cases. The tenure of office of a Judge of the High Court could also be extended for a maximum period not beyond sixty-five years as may be agreed with the judge.
The constitutional provision was altered in 1977 to enable the retention on the Bench of the services of Justices of the Court of Appeal for such period as was to be agreed. It was considered then that the amendment was desirable on the ground that the judge would continue to contribute significantly to the administration of law and its development in Guyana. Its operation has been the subject of criticism on the grounds that the benefit of the provision is being applied selectively. Perhaps consideration may be given to extending the age of retirement of judges to seventy years as has been done in some Commonwealth Caribbean jurisdictions. In the case of Guyana, this may provide an incentive for senior attorneys-at-law to accept judicial appointments with the expectation of receiving reasonable superannuation benefits. Having regard to the application of the one year being equivalent to two years formula.
It should be noted however, that the extension of the tenure of office of a judge (other than the Chancellor and the Chief Justice) beyond the age prescribed by the Constitution for retirement is made by the President acting on the advice of the Judicial Service Commission. In the case of the Chancellor and the Chief Justice, the President is required to consult with the leader of the Minority Party on the extension of tenure of office.
h) Part-time judges
In England, Queen's Counsel approached by the Lord Chancellor, undertake judicial assignments for at least one month in a year. It seems, however, that the Barrister is not, as a consequence, required to relinquish his or her retainers during that period. In Guyana, the late Sir Lionel Luckhoo, S.C., B.O. Adams, S.C., Frederick Ramprashad, S.C., J.A. King, S.C., Rex McKay, S.C., and L. Luckhoo. S.C. all accepted temporary judicial appointments in order to facilitate the work in the High Court.
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