Newly-appointed Caribbean Court of Justice (CCJ) President Adrian Saunders yesterday said that a review of the existing formula used to appoint the Chancellor and Chief Justice should be considered, while reiterating that the continued failure to make substantive appointments is not right.
His comments come against the background of a deadlock between President David Granger and Opposition Leader Bharrat Jagdeo, who must agree on the appointments.
Jagdeo has rejected the names put forth by Granger and the two leaders have not been able to move beyond this stage of the process.
“For the country not to have a Chancellor – and it has implications for the Chief Justice as well because it just cascades down – for that length of time is just not right… It’s not for me to indicate what measures should be put in place to break the deadlock. All I would say is that something should be put in place in order to resolve the situation because it has implications for the proper running of the Guyana courts,” Justice Saunders told reporters shortly after a business luncheon hosted by the Guyana Manufacturing & Services Association Limited (GMSA).
Justice Saunders, who took up the position as head of the CCJ following the retirement of Sir Dennis Byron last month, had previously expressed his concerns about the impasse when he visited Guyana in May. Sir Dennis had also warned of the danger of failing to make substantive appointments.
Justice Saunders told reporters at the Guyana Pegasus yesterday that while it is a “sensitive issue,” it is one which the court has a serious concern about. He reminded that Guyana has not had a substantive Chancellor for about 13 years, since Chancellor Desiree Bernard’s departure from the bench to become a CCJ judge. “Since then, there have been persons acting in that position. That is unfortunate. It is quite frankly… not right,” he said.
While noting that he is knowledgeable about the existing constitutional requirements for the appointments, Justice Saunders said that some attention should be given to whether that is an appropriate formula or if the formula is to be kept, what other mechanisms should be put in place to break a deadlock. “That formula is always likely to throw up this kind of situation,” he said.
Asked how he feels that nothing much has changed since his comments in May and those of Sir Dennis previously, Justice Saunders stressed that they are “outsiders” to Guyana’s political system and while he has a right to air his views, it is the political leaders who have to sort the matter out.
Article 127 (1) of the Constitution states that both sides must agree on the nominees before the substantive appointments can be made. “The Chancellor and the Chief Justice shall each be appointed by the President, acting after obtaining the agreement of the Leader of the Opposition,” it states.
While addressing those attending ‘The rule of law and the Caribbean Court of Justice’ at the Fourth Conversation on Law and Society, hosted by the University of Guyana in May, he had stressed that the failure to make substantive judicial appointments was a “significant stain” on the rule of law. Saunders, who at the time was the CCJ’s President-Designate, described the situation in Guyana as inexcusable but stopped short of offering a remedy.
“The ability of the judiciary to resolve matters must be a critical dimension of the rule of law. In this regard, I have to say a significant stain on the rule of law so far is Guyana’s inability over the last 13 years to appoint a substantive office holder to the position of Chancellor…There really can be no excuse for that kind of situation,” he told the audience, which included Chancellor (ag) Yonette Cummings-Edwards, the president’s choice for substantive Chief Justice. Belize’s Chief Justice Kenneth Benjamin is the president’s nominee for the post of Chancellor.
Saunders told reporters that he and Sir Dennis do have views on issues that directly concern the administration of justice. “We think we are entitled to express those views but ultimately it is a matter for the Guyana political directorate and I just wish that steps will be taken to resolve that issue,” he said.
In May, Granger said that it was up to Jagdeo to move the process forward, while pointing out that discussions cannot take place if there is no counterproposal.
“The ball is in the court of the Leader of the Opposition. I have made my proposals to him. He simply rejected them. He has not made any counterproposals, so there is nothing to discuss,” the President told reporters during a brief interview following the conclusion of the opening ceremony of a Caribbean Financial Action Task Force workshop for judges and prosecutors.
In January, Granger had informed Jagdeo that his choice for Chancellor of the Judiciary was Justice Benjamin, while acting Chancellor Cummings-Edwards was his nominee for Chief Justice. The two met on the issue and Jagdeo at that forum asked for some time to deliberate on the matter. On February 7th, 2018, by way of letter, Jagdeo informed Granger of his disagreement with the nominees.
Jagdeo subsequently made it clear that he will not be making any counterproposals. “He is the president of Guyana he has to initiate…I have already given my position. I said I am prepared to engage further…He needs to get back to me about the mode of that engagement that is my position,” he said.
The two met again last month but the matter did not come up for discussion. The president has not indicated when again talks will be held on this issue.
Justice Cummings-Edwards and acting Chief Justice Roxane George were appointed last year, weeks after the retirement of then acting Chancellor Carl Singh. Chancellor Singh was the acting head of the Judiciary for about 12 years. Granger, while serving as Opposition Leader, had refused to agree to Chancellor Singh’s substantive appointment, saying that that position as well as the Chief Justice’s post must first be advertised in the interest of transparency before there is any confirmation. The then PPP/C government had argued that such a process was not catered for under the Constitution.