Noting that the president has to make the first move to resolve the decade-long failure to appoint a substantive Chancellor and Chief Justice, Opposition Leader Bharrat Jagdeo is warning that he will not allow himself to be coerced into accepting nominees just to fix the situation.
“Now we have two persons who are acting in the position(s). As you would recognize, this is not a new situation. It’s not desirable but it’s how it has been for a long time in our history… just to have a substantive nominee. I am not going to promise now that any names that the president submits to me, that I will automatically give my approval for those names,” Jagdeo told Sunday Stabroek in a recent interview.
He added that he has spoken out about the need to have the two top judicial posts held by persons who have been confirmed “just to give them security of tenure, which would ensure they are less susceptible to political influence.”
At present Justice Yonette Cummings-Edwards is the Chancellor (ag) and Justice Roxane George SC is the Chief Justice (ag). They were appointed in March this year as part of a temporary arrangement between President David Granger and Jagdeo. Their predecessors, Justices Carl Singh and Ian Chang both retired without being substantively appointed Chancellor and Chief Justice, respectively.
Article 127 (1) of the Constitution stipulates that “the Chancellor and the Chief Justice shall each be appointed by the President, acting after obtaining the agreement of the leader of the opposition.”
Speaking to Sunday Stabroek, Jagdeo, under whose tenure both Singh and Chang were appointed in acting capacities, said that he has publicly spoken about the “gap” left after Justice Singh retired on February 23 this year. “There shouldn’t be a gap in the leadership at the level of the judiciary,” he said, while noting that the president had invited him to a meeting to speak about the acting appointments. He said that although it did not follow the full protocol at that time, he decided to attend the meeting because of the urgency of the situation.
A release that was issued from Jagdeo’s office on March 1 stated that during a meeting with the president, Jagdeo indicated that he would not insist on the formalities of a letter accompanied by the names of the president’s nominees along with curriculum vitae, “as is the practice which has evolved… in keeping with the letter and spirit of the Constitution.” Jagdeo indicated that his reason for dispensing with formality was because filling the vacancies was of national importance and the president’s departure for overseas was imminent.
The president had proposed Justice Cummings-Edwards, who was then performing the functions of Chief Justice, to act in the position of Chancellor and Justice George to act in the office of Chief Justice. Jagdeo informed the president that he required one week to offer his views on those proposals. This did not find favour with the president, who went ahead with the acting appointments.
Jagdeo reminded Sunday Stabroek that the president indicated at their meeting that he had established something akin to a search committee and that “he would get back to me subsequently on some substantive nominees for these positions. Until now I have not heard from him.”
The committee Jagdeo referred to is a panel comprising retired justices Claudette Singh and James Patterson along with former University of Guyana Vice-Chancellor Harold Lutchman. The panel’s task was to review the applications received in response to ads for both positions and recommend the most suitable candidates to Granger.
In January, government, via public notices, invited applicants for the two posts. The committee was set up shortly after that.
Asked how he felt about the setting up of the search committee, Jagdeo pointed out that how the president chooses his nominees is not a matter for him to determine. “When the names come to me, I will look at the merit of the names and then on that basis make a decision,” he said, while agreeing that the current situation is “undesirable.”
He also said that he has no problem if a non-Guyanese is chosen for either positions. “For me… I will look at the names of the people and their political affiliation, their track record,” Jagdeo said, while noting that though it will be desirable to have Guyanese in the substantive posts, “if we have to go beyond Guyana to get quality people in our judiciary holding the two top posts, I do not have any problem with that.”
On October 6, Granger had informed that a Carib-bean jurist of Guyanese descent had been nominated for the substantive post of Chancellor and he explained that he was awaiting a response from him before he schedules a meeting with Jagdeo.
“Right now, he has been written to… once I receive a response from the person, who has been nominated by the panel, I will have a meeting with [Jagdeo],” Granger had said, when asked for an update on the appointment.
According to Granger, after previously failing to reach a decision on a list of recommendations, he had proposed to the then president Donald Ramotar that a search be done within the Anglophone Caribbean for a suitable candidate for the post of Chancellor.
“That search has been done. It has been completed and some recommendations have been made and I have written to the person who was recommended, a person of Guyanese descent,” he said.
Though he did not name him, this newspaper was reliably informed that the nominee is a jurist who holds a high-ranking judicial post in a Caricom member state. The jurist has a career spanning approximately 40 years. Based on what this newspaper was recently told, he is 61 years old. The mandatory retirement age from judicial office is 65.
This newspaper was also told that another Caribbean jurist, who is also Guyanese by birth, was initially being considered. This jurist, a woman, is an appellate judge and has held a number of other positions during an approximately 30-year-long career and has worked in at least two Caricom member states.
A nominee has also been identified for the substantive post of Chief Justice. While there are no available details on who this person is, this newspaper was previously told that a well-known High Court judge is among the applicants.
Jagdeo made it clear that he will await word from the president, who is presently in Kenya on official duties. He told this newspaper that he is very skeptical about publicly appealing to Granger to urgently address the matter. “I am very cautious that if I do that and then he sends some names that are objectionable to me, he would then say, ‘you know you were urging me to get the names to you quickly.’”
Noting that he is not necessarily saying he would sit on this issue for another year, he said, “Right now, let us see how it goes… what will happen.”
Delivering the keynote address at the 37th Annual Bar Dinner last month, the CCJ President Sir Dennis Byron had said it was disappointing that no substantive Chancellor has been appointed after Justice Desiree Bernard’s departure and noted that having both offices being led by judges acting in respective capacities is “a most unfortunate state of affairs.”
“The delay in complying with section 127(1) of the Constitution has long reached a level of justiciability and the most appropriate authority for resolving this situation is the court system,” he said.
He noted that despite the subjective component of reaching agreement, the constitution could not have intended the decade-long paralysis that has resulted from the failure to agree.
The judge also lamented the inability of successive presidents and opposition leaders to agree on appointing a substantive Chancellor of the Judiciary, while warning that prolonged acting appointments pose a genuine “risk” to the promise to citizens of an independent and impartial judiciary.