On February 18, 2018, the Guyana Bar Association (GBA) issued an inexplicable statement attacking the President on his intended exercise of powers invested in him by Article 127 of the Constitution, to appoint the Chancellor and Chief Justice. The Bar Association’s statement speculated inter alia, that “Any action outside of the said Article 127 is unconstitutional, void, of no legal effect and would have embarrassing consequences.”
Article 127 (1) of the constitution mandates that, “The Chancellor and the Chief Justice shall be appointed by the President acting after obtaining the agreement of the Leader of the Opposition.” Article 127 (2) further mandates that “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 office, or if the person holding the office of Chief Justice is for any reason unable to perform the functions of his 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 of the Judges as shall be appointed by the President after meaningful consultation with the Leader of the Opposition.”
On January 3, 2018, President David Granger nominated current Chief Justice of Belize Kenneth Benjamin to be Chancellor, and Acting Chancellor of Guyana Yonette Cummings-Edwards, to be Chief Justice. The President, in accordance with Article 127, sought the agreement of Opposition Leader Bharrat Jagdeo. On February 7, 2018 Mr Jagdeo wrote the President refusing to grant consent. President Granger subsequently said he will be guided by advice from his legal advisers on his constitutional options. He affirmed a desire to appoint substantive office holders as the country cannot be without a Chancellor and Chief Justice. Since 2005, the nation has been without a substantive Chancellor and Chief Justice. Unless the GBA is clairvoyant, these comments by the President constitute the established record and the only basis upon which the GAB can objectively comment or premise legal opinion.
The issuance of a highly charged, political statement chastising the Head of State on the basis of rumour, speculation and political gossip, evinces political bias. It is incontrovertible evidence that the GBA has wittingly enmeshed itself in partisan politics as an advocate and ill-advised surrogate for the Opposition Leader. In so doing, it has, with prejudice, undermined its ability as a credible and objective amicus, civil society intermediary. This is antithetical to the fundamental tenets of legal ethics and justice for which the association and its members should be obligatory advocates at the Bar: ie conclusion based on confinement to principles of proof of fact, evidence or findings of fact; not speculation and hearsay. The relinquishment of the aforementioned principles caused the association’s statement to be without merit.
If the GBA has a genuine concern about the President’s fidelity to the Constitution, it should have met with or written the President and Opposition Leader and conveyed its opinion on Article 127, as well as the corrosive impact of the political “Acting” game on the judiciary. Failing this it should have waited until the President acted. At that point, if it deemed such action to be unconstitutional or ultra vires the Constitution, it can raise hell and sue the President to overturn his action. But to speculate on, or proffer a legal opinion on the President’s contemplated action, based on the GBA’s presumption, is malicious, unprofessional and repugnant to the standards of the Bar, including fair and impartial judgement and equal justice and protection under law. Our society should therefore reject reckless political speculations from the law body that regulates the conduct and ethics of the legal fraternity. It is corrosive to our polity.
Moreover, it is reassuring that the GBA has suddenly found its voice. Where was the Bar Association when Mr Jagdeo, as President, and his government ostensibly abused the Constitution, unlawfully conflated the positions of Chancellor and Chief Justice and illegally appointed Mr Carl Singh to both positions? I submit that the GBA’s silence then and sudden voice now demonstrates a worrying pattern. The GBA has eroded its own credibility and turned itself into a joke.
Caribbean Guyana Institute for Democracy