Despite an appeal on April 9 last year by the President of CCJ, Justice Adrian Saunders for substantive appointments before the end of 2022, Guyana has entered 2023 without a confirmed Chancellor and Chief Justice and amid myriad excuses by President Irfaan Ali.
Addressing the Guyana Bar Association (GBA) dinner in April last year in the backdrop of many years of acting appointments to the two top judicial posts, Justice Saunders called for the substantive appointment of a Chancellor of the Judiciary and a Chief Justice before the end of the year.
The Caribbean Court of Justice (CCJ) has expressed concern about this matter over the years. The last substantively appointed Chancellor of the Judiciary was Justice Desiree Bernard 17 years ago.
In his address to the GBA, Justice Saunders said: “There is one significant blot on an otherwise impressive Guyanese legal and judicial landscape. For the country to have not appointed a Chancellor for 17 long years is very disappointing; likewise, to be without an appointed Chief Justice for several years. As the President of your final court, I believe I have a right and a duty publicly to express the view that Guyana should not let this year pass and not remedy this regrettable situation.”
The current Chancellor and CJ positions are held in acting capacity by Justices Yonette Cummings and Roxane George SC respectively and for confirmed appointments both the President and the Opposition Leader have to agree. President Ali came under intensive pressure in May last year to make the appointments when Opposition Leader Aubrey Norton signalled a change in his party’s previous position and expressed support for the substantive appointment of both Justices Cummings and George.
Norton’s disclosure came in a letter of May 30th 2022 to Minister of Parliamentary Affairs and Governance, Gail Teixeira in which he declined to attend a meeting with President Ali on the grounds that he had been given short notice and had other commitments.
This move by Norton put the pressure squarely on President Ali but seven months later he has still refused to confirm the duo or make a different proposal to Norton despite the clear importance of having confirmed appointments at the top of the judiciary.
On September 12 last year when pressed on the matter during an exclusive interview with Stabroek News, Ali sought to brush the matter aside and suggested that a Judicial Service Commission (JSC) had to be in place first.
“We don’t have a Judicial Service Commission as yet. You can’t look at an entire judiciary without having a holistic solution. So let me say very clearly at the appropriate time, the matter of the Chancellor and the Chief Justice will be brought on the agenda. You have a chancellor. You have someone performing the duties of a chancellor right now. How do you think I was sworn in? Who swore the president in? It is the chancellor, the Acting Chancellor who swore … So I don’t know, it’s not like the country is without a chancellor,” he told Stabroek News.
Former Speaker of the National Assembly, Ralph Ramkarran SC subsequently pointed out in his Sunday Stabroek column that there is no correlation between the appointments of either the Chief Justice or Chancellor and the establishment of a JSC.
“If President Ali’s understanding of the constitutional provisions relating to the appointment of a Chancellor and Chief Justice, is that they have to be recommended by the JSC, or that there is a linkage between the existence of the JSC and the appointments, the view is misconceived,” Ramkarran said.
Having listed the laws of this country related to the appointments, Ramkarran added, “Based on the constitutional provision cited above, the President needs only to identify the persons, obtain the agreement of the Leader of the Opposition and make the appointments. If the nominees are the current acting incumbents, the only requirement would be for the President to issue the necessary instruments and swear in the appointees because the Leader of the Opposition has already publicly agreed.”
And as he pointed to excerpts of the Ali’s interview with this newspaper, Ramkarran said that that one would believe that Ali’s pointing out that there is an acting Chancellor and an acting Chief Justice in place, and …the judiciary is functioning, means that there is no urgency to make the appointments.
“There is an urgency. The positions of Chancellor and Chief Justice have been vacant for more than seventeen years. The lack of alacrity or sense of urgency to fill constitutionally mandated posts which have been vacant for so long cannot withstand constitutional scrutiny,” he contended.
“The judiciary, along with the executive and the legislature, is one of the three branches of government. The other two branches, the executive and the legislature, will not be treated with anything near to the scant disregard and constitutional impropriety that the judiciary is being treated. If the President is hoping that delay will somehow reduce focus on the appointments, or make the issue disappear, or that different candidates will materialise, he is being unrealistic,” Ramkarran opined.
Earlier in September last year the President denied that his government was stalling the process. He said then that it will commence when the constitutional commissions are effectively set up.
“We are not at the stage of addressing those issues as yet. There is nothing stalling, it is just that we have not commenced that as yet. We are trying to complete the Judicial Service Commission. These things must be in place almost instantaneously,” the President said when asked by Stabroek News about the delay in the appointments.
“Now we have the clearance, we are hoping to get the Teaching Service Commission constituted. We are hoping to have the Judicial Service Commission in full effect and then we will move our focus,” he added. The top judicial appointments however only need the President and the Leader of the Opposition to agree.
Reacting to that comment by Ali, Ramkarran had said: “The President’s consideration of the matter in his ‘deliberate judgement’ cannot be open- ended. The President has a lawful responsibility under the constitution to make these appointments. It is not contemplated by the constitution that if there is no obstacle to the appointments, that the President’s ‘deliberate judgement’ can serve to indefinitely delay the performance of this vital constitutional duty. The Attorney General is expected to advise accordingly,” Ramkarran said.
Legal action
Legal action filed by the main opposition APNU+AFC in relation to the substantive appointments has also been stalled. APNU+AFC is contending that President Ali is in “gross dereliction and abdication of his duty” and has no “lawful excuse” for not consulting with Opposition Leader Norton, on the substantive appointments of a Chancellor and Chief Justice.
The hearing of the challenge was postponed from last November to January 11th, 2023.
At a case management conference back in September, Justice Damone Younge had fixed November 22nd 2022 for oral arguments.
In a letter, however, to the Court dated Monday, November 21st, 2022 Attorney General Anil Nandlall SC—the Respondent— in the matter, said that he wanted to personally present the arguments, which he said was being hindered from because of his attendance before the International Court of Justice in the Netherlands.
Nandlall was part of the delegation from Guyana which travelled to the Netherlands where the World Court was hearing arguments in the case regarding the decades-old border controversy between Guyana and Venezuela.
Nandlall said that given the public importance of the matter regarding the judicial appointments, he wanted an opportunity to deliver the arguments himself.
