President of the Caribbean Court of Justice (CCJ) Sir Dennis Byron has described Guyana’s failure to appoint substantive office-holders for the country’s two top legal posts for over a decade as unacceptable.
Delivering the keynote address at the 37th Annual Bar Dinner on Saturday, the judge bemoaned 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.
“With the passage of 12 years the undesirability of further delay could no longer be controversial. This is a very serious issue because attacking the problems of delay and all other issues that need reform requires strong leadership,” Sir Dennis said. “It is simply obvious that a leader who is not appointed is under a disadvantage, and criticisms of the sector need to be received with the knowledge of the impediment that is placed on the leadership of the institution, an impediment which the Constitution specifically frowns on,” he added.
Against this background, the CCJ head issued a call to “the high officials of our community” to execute their constitutional duty and appoint the highest judicial officials, as an important element in guaranteeing judicial independence to citizens.
Sir Dennis recalled the office of the Chancellor becoming vacant after Justice Desiree Bernard joined the bench of the CCJ and he said it was disappointing that even 12 years later, no substantive Chancellor has ever been appointed.
With both the offices of Chancellor and Chief Justice currently being led by judges acting in the respective capacities, Justice Byron described this as “a most unfortunate state of affairs.”
Following a meeting between President David Granger and Opposition Leader Bharrat Jagdeo in March, Justices Yonette Cummings-Edwards and Roxane George SC, were appointed as acting Chancellor and acting Chief Justice, respectively.
Their predecessors, Justices Carl Singh and Ian Chang acted also as Chancellor and Chief Justice, respectively, up until their retirement. Singh retired this February, while Chang retired a year earlier.
Chang was appointed in 2000.
Stressing the importance of making substantive appointments, Sir Dennis referenced Article 127(1) of the Constitution, which provides, “the Chancellor and the Chief Justice shall each be appointed by the President, acting after obtaining the agreement of the leader of the opposition.”
The judge pointed out that this provision was a key subject of amendments in 2001.
Whereas under the previous 1980 Constitution, the Chancellor and Chief Justice could be made by the President after “consultation” with the minority leader, under the 2001 amendments, the actual agreement of the leader of the opposition is now required.
Juxtaposing Article 127(1) with 127(2), Byron noted 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.
Article 127(2), states, “if the office of Chancellor is vacant… then until a person has been appointed to and has assumed the functions of such office… the 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.”
Sir Dennis reasoned that any appointment made pursuant to Article 127(2), is envisioned as a short-term appointment. He said this highlights a critical factor in the interpretation of Article 127 as a whole; that is, that Article 127(2) does not provide an alternative method of appointing the Chancellor and Chief Justice.
Article 127(1), he said, ascribes an obligation on the President and the Leader of the Opposition that is mandatory in nature and not discretionary. “Any failure in fulfilling this obligation must therefore be regarded as a breach of the Constitution,” he argued.
He advanced 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.
‘Not an acceptable option’
The judge surmised further that the reason the bar may have been lifted from “consultation” to “agreement” is because the appointments are important to “good governance and the welfare of citizens,” and he stressed that “failure to agree is not an acceptable option in the interpretation of that constitutional provision.”
The CCJ President said that while he acknowledges practical problems in identifying precisely where the liability lies in the failure to come to an agreement, it seems entirely plausible for such liability to lie with either the President or Opposition Leader, or both.
He made this conclusion, in accordance with the mandate of section 127(1) and depending on the process that has been followed to reach agreement between the two sides.
As a result, Sir Dennis noted that the natural question follows of whether there exists an appropriate statutory or regulatory framework to establish agreement. He observed that if this is answered in the affirmative, that may be a basis for judicial intervention, but if answered in the negative, then now would be the opportune time to address any existing regulatory or statutory gaps and he added that this may also be a basis for judicial intervention. “This situation has moved well beyond what ought to be acceptable in a modern democracy where respect for the rule of law is maintained,” he further said.
The constitution, he noted, 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. Anything otherwise, he argued, is a violation of the spirit and intent of the Constitution.
Referencing Article 122A (1), the judge said, that substantive appointments contribute to an independent judiciary.
That article provides, “All courts and all persons presiding over the courts shall exercise their functions independently of the control and direction of any person or authority; and shall be free and independent from political, executive and other form of discretion and control.”
This provision, Sir Dennis argues, effectively promises to every Guyanese, a judiciary that is completely independent in all aspects. “It cannot be said that this provision contemplates and/or condones in any way, prolonged acting services of the country’s number one and number two judicial officers,” he observed, while noting the genuine “risk” posed to the constitutional promise to every citizen of an independent and impartial judiciary.
He also quoted Guyanese academic, Professor Arif Bulkan as saying, “Acting appointments for protracted periods are generally inimical to fearless, independent performance” and serve to place a judge “in a perpetual state of probation, and demands strength of character in order to rule fearlessly.”
Sir Dennis said that the delay in complying with Article 127(1) has long reached a level of justiciability, and the most appropriate authority for resolving this situation is the court system.
The judge said it is noteworthy that the interpretation of Article 127 had already been the subject of litigation 10 years ago, in the local case of Committee for the Defence of the Constitution v AG.
He reminded the gathering that the court was confronted with a challenge to Justice Singh performing both the functions of Chancellor and Chief Justice. The court ruled that it was a breach of the Constitution for the functions of both offices to be performed simultaneously.
He observed that what was interesting about the case was that while the court appeared to have acknowledged that the failure to appoint a substantive Chancellor for a prolonged period violated Article 122A (1) of the Constitution, it seemed to have viewed itself as constrained by Article 127, not specifying any time limit for the period of an acting appointment or within which agreement must be reached.
The Bar Dinner was held at the Pegasus Hotel, under the theme, “The Importance of an Independent and Impartial Judiciary.”