Latest update February 16th, 2025 7:47 AM
Aug 08, 2021 News
By Carlos Gonsalves
Kaieteur News – A point of continuous embarrassment for Guyana’s judiciary, is that, for the past twenty years Guyana has remained without a substantive Chancellor and Chief Justice (CJ) despite a Constitutional amendment being enacted in 2001 to provide a more transparent and inclusive process of appointment.
The legal instrument that empowers the appointment of the top two judicial posts is the Constitution of Guyana. The process is governed by Article 127 (1) which originated from the constitutional reform process of 1999-2001. Article 127 (1) provides as follows: “The Chancellor and the Chief Justice shall each be appointed by the President, acting after obtaining the agreement of the Leader of the Opposition.”
According to now Minister of Legal Affairs and Attorney General, Anil Nandlall, in a 2017 letter to this publication, this “was one of the nearly two hundred constitutional amendments unanimously enacted during that period. The precursor position which existed in the 1980 Constitution empowered the President to make those appointments ‘after consultation with the Minority Leader.’ The requirement of ‘consultation’ has now been replaced by agreement.”
Mr. Nandlall continued by stating that “It is common knowledge that since this constitutional amendment was enacted, no agreement was ever reached between the President and the Leader of the Opposition, in respect of the appointment of a Chancellor and Chief Justice.” This failure to effect substantive appointments is predominantly rooted in the partisan nature of Guyana’s political system which manifests as 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, and would have resulted in a definite constitutional crisis for Guyana, had it not been for the existence of Article 127(2). In the words of the AG, “One must credit those who were part of the constitutional reform process for their foresight. They were wise and prophetic enough to recognise the strong possibility of a non-agreement. To avoid a constitutional vacuum and consequent crisis, they crafted Article 127 (2). It reads thus: If the office of Chancellor or the Chief Justice is vacant, or if the person holding the office of the 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 a person has been appointed to and has assumed the functions of such office, or until the person holding such office has resumed those functions, as the case may be, those functions shall be performed by such other judges as shall be appointed by the President after meaningful consultations with the Leader of the Opposition.”
The A G subsequently confirmed the origin of the issue being due to partisan politics. When the PPP/C was previously in government, the AG noted that the respective presidents of the time (President Jagdeo and President Ramotar) signalled their intention to confirm the incumbents occupying the positions; however, the respective Leaders of the Opposition withheld their agreement. It is noteworthy that despite the disagreement, neither the competence nor the suitability to hold those offices of the persons in the positions was ever publicly questioned.
The AG noted, that although it was agreed by both sides that the incumbents at that time, had both demonstrated their competence and indeed, had accumulated a track record of success as actors in those positions, the impasse endured. This was still the case under the previous David Granger led administration. Mr. Nandlall observed then that “the President did not attempt to secure the agreement of the Leader of the Opposition before making those two appointments. Rather, he chose to invoke Article 127 (2) of the Constitution as a first option, thereby ignoring Article 127 (1).”
Subsequently when attempts at consultation were made, President Granger, proposed a number of nominees to the Leader of the Opposition, but this was rejected.
Regional Response to the Guyana Impasse
The President of the Caribbean Court of Justice, Sir Dennis Byron, delivering the feature address at the Annual Dinner of the Guyana Bar Association on November 11, 2017, at the Pegasus Hotel in Georgetown, has deeply condemned the successive acting appointments, and the failure to arrive at an agreement between the President and Opposition Leader. The learned President of the CCJ expressed the view that the current state of affairs was debilitating to judicial independence and was tantamount to a violation of the letter and spirit of the Constitution. He further posited that: “This situation has moved well beyond what ought to be acceptable in a modern democracy where respect for the rule of law is maintained. The Constitution envisages the judiciary of Guyana to be headed by officials who are substantively appointed and enjoy all the legal and institutional mechanisms to secure their tenure. Furthermore, the then CCJ president also posited that the use of the word “shall” in Article 127(1) imposes a mandatory obligation upon both the President and the Leader of the Opposition to come to an agreement on the persons to be appointed as Chancellor and Chief Justice.
Additionally he notes that “the Constitution could not have intended the decade long paralysis that has resulted from the failure to agree. The importance of the appointment to good governance and the welfare of the citizens may explain why the bar was lifted from consultation to agreement in the 2001 amendment. But it should also indicate that the Constitution intended that the identified officials would exercise high standards of good faith and reasonableness because failure to agree is not an acceptable option in the interpretation of that constitutional provision.”
The subsequent President of the Caribbean Court of Justice, Justice Adrian Saunders, had also expressed similar sentiments to that of his predecessor about the situation.
In the Guyanese case of Committee for the Defence of the Constitution vs. AG, the court was confronted with a challenge to Justice Carl Singh performing the functions of both Chancellor and Chief Justice. The court ultimately determined that it was a breach of the Constitution for the functions of both offices to be performed simultaneously. Additionally, the court acknowledged that the failure to appoint a substantive Chancellor for a prolonged period violated Article 122A(1) of the Constitution, but also adopted the view that it was constrained by Article 127 not specifying any time limit for the period of an acting appointment or within which agreement must be reached.
A look at the prospective resolution of the current impasse
Due to the events of the Guyana 2020 elections, the outlook for a resolution to the two decade impasse looks even bleaker than before. The events of the 2020 election highlighted the extent of the influence of partisan politics in Guyana, which consequently exasperated the impasse. This is by virtue of the fact that the Leader of the Opposition, Joseph Harmon, refuses to recognise President, Irfaan Ali, as legitimately elected. This has consequently prevented any form of consultation between the two leaders. Mr. Nandlall said Harmon must change his “bizarre position” and recognise President Ali before any consultation on this and other matters. The AG had also said that given the impasse over the appointments for so many years, it may be time that the constitutional requirement is revisited to remove the provisions for consultation.
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