Aug 03, 2020 News
…20 years after constitutional amendment
Twenty years after a constitutional amendment was made to allow the two top judicial office holders to be appointed substantively by the President after obtaining the agreement of the Opposition Leader, Guyana remains without a substantive Chancellor and Chief Justice (CJ).
This is largely due to the lack of consensus on the issue between the two main political leaders. This issue has been a source for concern for both local and regional judicial bodies.
In an invited comment, Attorney General, (AG) Anil Nandlall noted that given the impasse over the appointments, it may be time that constitutional amendment is revisited. Nandlall shared the view that this aspect of the Constitution which provides for the involvement of key politicians has not worked in the best interest of the judiciary.
Nandlall said that he even witnessed firsthand how politics has impacted the said appointments.
“I was present at several meetings with past Presidents and Opposition Leaders— as they tried to reach a consensus on the best candidates to fill the position but they just could not agree on the proposed nominees,” he said.
Nandlall said that it is unfortunate the constitutional amendment has not borne a single fruit after all these years. He suggested that “Maybe it is time for that amendment to be revisited and be amended again for a practicable formulae in the interest of the advancement of our judiciary.”
The procedures for the appointment of Chancellor and Chief Justice are outlined in Article 127 (1) and (2) of the Constitution of Guyana.
Article 127 (1) states: “The Chancellor and the Chief Justice shall be appointed by the President after obtaining the agreement of the Leader of the Opposition”.
The appointments of acting Chancellor and Chief Justice were made in conformity with Article 127 (2) which states: “If the office of Chancellor or Chief Justice is vacant, or if the person holding the office of Chancellor is performing the functions of the office of President or is for any other reason unable to perform the functions of his or her office, or if the person holding the office of Chief Justice is for any reason unable to perform the functions of his or her office, then, until such a person has been appointed to and assumed the functions of such office or until the person holding such office has assumed those functions, as the case may be, those functions shall be performed by such other of the Judges as shall be appointed by the President after meaningful consultation with the Leader of the Opposition.”
Since the amendment was made to the Constitution in 2001, not a single Chancellor or CJ has been confirmed in the positions. The persons who held those offices have all acted including Justice of Appeal, Yonette Cummings Edwards and High Court Justice, Roxane George –Wiltshire who were appointed to act as Chancellor and Chief Justice respectively by former President David Granger.
The acting appointments were made after Granger and former Opposition Leader, Bharrat Jagdeo could not come to an agreement on the nominees for the top offices.
Guyana’s last substantive Chancellor of the Judiciary was Justice Desiree Bernard. She served until 2005 and had been in position before the Constitution was amended.
After then, several other judges were appointed to act in the position including the current Chancellor, Justice Cummings-Edwards, who was sworn in by Granger on March 27, 2018 following the retirement of Justice Carl Singh, who was also never confirmed for the post.
Justice George was also sworn in to act as Chief Justice then, too. She was appointed to the post in December 2015, following the retirement of the late Justice Ian Chang, S.C. Both Justices Cummings-Edwards and George worked in the chambers of the Director of Public Prosecutions (DPP) before their elevation to Judges.
A number of judicial bodies including the Caribbean Association of Judicial Officers [CAJO] have expressed concerns over lengthy acting appointments for Heads of Judiciaries with specific reference to Guyana’s situation.
CAJO explained that given the context of the role of judiciary, not being able to confirm candidates for these top judicial roles goes against the grain of establishing public trust and confidence in the Court system.
Furthermore, the country’s inability to appoint a substantive Chancellor of the Judiciary has been bemoaned by the country’s highest court, the Caribbean Court of Justice (CCJ).
In fact, in May 2018, President of the CCJ, Justice Dennis Byron, as he then was, expressed that having judges acting in the position of Chancellor and Chief Justice is a most unfortunate state of affairs.
Among other things, Justice Byron complained that prolonged acting appointments pose a genuine risk to the promise to citizens of an independent and impartial judiciary.
Current President of the CCJ Justice Adrian Saunders also called out Guyana for this issue. Justice Saunders had said that the country’s failure to make substantive judicial appointment is a significant strain on the rule of law.
In addition, during its biennial conference in Belize last year, CAJO had raised the issue over Guyana’s failure to appoint a substantive office holder of Chancellor of the Judiciary for over 14 years.
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