APNU/AFC challenge to non-appointment of Chancellor, CJ: Oral arguments put off to January 2023

Oral arguments which were initially set for Wednesday in the APNU/AFC’s challenge to President Dr Irfaan Ali’s non-appointment of a substantive Chancellor of the Judiciary and Chief Justice (CJ) have now been deferred until January 11, 2023 at 13:30h.
The adjournment was granted on Wednesday by High Court Judge Damone Younge following a request from Attorney General Anil Nandlall, SC, the lone respondent in the case.

In a letter to Justice Younge on Nandlall’s behalf, Solicitor General Nigel Hawke explained that the Attorney General, who was at the International Court of Justice (ICJ) in the Hague, The Netherlands, representing Guyana in the border controversy case against Venezuela, would like to appear in person, given the importance of the case.
Nandlall returns to Guyana today.
But Opposition lawyer Roysdale Forde, SC, has objected to Nandlall’s request for an adjournment, and stated the following in a missive to the Judge: “The Attorney General could appear remotely by Zoom. The Attorney General could assign a member of his Chambers to provide oral arguments. Nigel Hawke, Solicitor General; Ms Shoshanna V. Lall; and Mr Chevy A. Devonish [both State Counsels], among others, have appeared for him in this case thus far.”
When the case was called on Wednesday, Opposition-aligned lawyer, Canada-based Guyanese Selwyn Pieters, also raised objections to the commencement of arguments being delayed, given the “public interest” nature of the matter, but the Judge still granted the adjournment. In light of the matter being delayed, Pieters asked that the case be dealt with expeditiously.
The Opposition had earlier this year filed legal proceedings over permanent appointments to the offices of the Chancellor of the Judiciary and Chief Justice, calling the non-appointment of the two judicial officers a gross dereliction and abdication of duties by President Ali.
A fixed Date Application (FDA) filed in the name of APNU/AFC Parliamentarian Vinceroy Jordan wants the High Court to direct the President, through the Attorney General, to forthwith initiate the process contemplated by Article 127 of the Constitution of Guyana to make appointments to the two top judicial posts.
The procedure for the appointment of the Chancellor and Chief Justice is outlined in Article 127 (1) of the Constitution, and it states: “The Chancellor and the Chief Justice shall be appointed by the President after obtaining the agreement of the Leader of the Opposition.”
It has been more than 21 and 17 years respectively since Guyana has had a confirmed Chief Justice and Chancellor. The last confirmed Chief Justice was Desiree Bernard, who served from 1996 to 2001; she also served as Chancellor from 2001 to 2005.
Member of Parliament (MP) Vinceroy Jordan complained that Dr Ali assumed the office of the President on August 2, 2020, and from then to present, the Head of State has failed to initiate any process contemplated by Article 127 of the Constitution to make permanent appointments to the offices.
He told the court that President Ali has publicly stated that he would not initiate the process to make the appointments until the Opposition recognises the legitimacy of the PPP/C Government.
“Since the 2nd day of August 2020, the President has stated that he would not initiate the process under Article 127 of the Constitution until the Leader of the Opposition and the Opposition recognises him and his Government as a legitimate Government,” Jordon has submitted.
Referencing an article published in the Guyana Chronicle on April 3, 2021, he said the Head of State was quoted therein as saying: “As you are aware, the [then] Leader of the Opposition [Joseph Harmon] has still not issued any statement recognising the legitimacy of the Government. So, I don’t know who I am consulting with. I am sure Harmon definitively knows who also is the Leader of the Opposition, and who is the President, so the ball is in his court to do the right thing, and I’m hoping – I’m a very positive person – I’m hoping that very soon he will stop his reckless statements about the Government and do what is right in the interest of the people of Guyana.”
Jordan pointed to a letter sent by Opposition Leader Aubrey Norton to the President in which he, Norton, expressed that he was committed to agreeing to the immediate appointment of Justices Yonnette Cummings-Edwards and Roxane George-Wiltshire, SC as the Chancellor and Chief Justice respectively. The two judicial officers are currently acting in their respective posts.
Considering this, the MP argued that President Ali has no valid and constitutional excusable basis and/or reason for failing to initiate the process contemplated by Article 127 of the Constitution, so that the offices of Chancellor and Chief Justice may be held with permanent appointments.

Regrettable situation
The country’s inability to appoint a substantive Chancellor and Chief Justice for an extended period has been a cause for concern for several bodies, like the Caribbean Court of Justice (CCJ), the Caribbean Association of Judicial Officers (CAJO), and the Bar Association of Guyana.
President of the Caribbean Court of Justice (CCJ), Justice Adrian Saunders, in April of this year, expressed his views on this impasse, calling on Guyana to remedy this regrettable situation with utmost urgency, recommending that the country should do so by the end of 2022.
Meanwhile, the Attorney General had previously said that, regrettably, some 20 years after Guyana’s Constitution was amended to facilitate the appointments of top judicial officers by the President with the agreement of the Opposition Leader, there is yet to be a substantive appointment of a Chancellor and Chief Justice.
He conceded that the current formula that requires consensus between the President and the Opposition Leader has not worked in the more-than-two-decades it was put in place. Luckily, he added, an adjustment was made for an alternative if there is no agreement between the President and the Opposition Leader under Article 127 (2) of the Constitution; that is, for the President to make acting appointments. And with consultations between Presidents and Opposition Leaders being unsuccessful over recent years, Nandlall had signalled there may need to be constitutional amendments.
“When we are going to consider constitutional reforms, we should consider whether we should change it again, because Guyana is the only country in the Commonwealth that has this provision, and we have great difficulty filling it,” he had said.

“When the time is right”
In September of this year, President Ali indicated that he would deal with the substantive appointments of the Chancellor and Chief Justice “when the time is right”, and after the various service commissions are established.

“We’re not at the stage of addressing those issues as yet,” the Head of State explained when asked for an update on the top judicial appointments, adding, “There’s nothing stalling it. It’s just that we’ve not commenced addressing that as yet.”
According to President Ali, other matters are engaging his attention. “I am trying to complete the Judicial Service Commission; these things must be in place almost instantaneously now that we have the clearance. We’re hoping to have the Teaching Service Commission fully constituted, and in effect we’re hoping to have the Public Service Commission fully in effect…then we’ll move our focus…,” he further explained.
The Head of State had previously told the media, “We have no issues appointing (the Chancellor and Chief Justice), but when the right time comes, we will have the consultations on the Chancellor and the Chief Justice.” (G1)