Appointment of Chancellor, Chief Justice: No dereliction, abdication of duty by the President – High Court rules

…says political actors must now act with “all convenient speed”

By Feona Morrison

While the High Court on Wednesday ruled that President Dr Irfaan Ali’s failure to make substantive appointments to the offices of the two top judicial posts does not amount to a dereliction/abdication of duty, nor does it contravene the Constitution, it called on the Head of State and the Opposition Leader to act with “all convenient speed” to fill the vacancies.

The decision was handed down by High Court Judge Damone Younge in the Fixed Date Application (FDA) brought against the Attorney General by Opposition Parliamentarian Vinceroy Jordan. In that FDA, Jordan had asked the High Court to declare that the Head of State’s failure to make permanent appointments to the offices of the Chancellor of the Judiciary and the Chief Justice between August 2020 and April 2022 amounted to a gross dereliction and abdication of his duties. He had also sought an order directing the President to forthwith initiate the process contemplated by Article 127 of the Constitution to fill the important judicial posts.
Article 127 (1) of the Constitution states: “The Chancellor and the Chief Justice shall be appointed by the President after obtaining the agreement of the Leader of the Opposition.”
While delivering her ruling, Justice Younge pointed out that President Ali cannot be faulted for the delay in the appointment because there was no Opposition Leader for him to consult between January 26, 2022 and April 12, 2022. Joseph Harmon resigned as Opposition Leader on the former date, while Aubrey Norton was elected as the new Opposition Leader on the latter.
Referring to the evidence, the Judge said that Harmon himself contributed to the delay as he had refused to meet with the President because he regarded the PPP Government as being illegal.
“From the period August 2020, when he [President Ali] took office, to April 2022, when Mr Norton was appointed the Leader of the Opposition, there was no reciprocal party with whom [the President] could have engaged, given the refusal of the then Leader of the Opposition to engage.
“A delay occasioned by these circumstances is fair, reasonable, and rational,” the Judge said.
Based on the evidence before the court, and while alluding to the various correspondence between the President and Norton on constitutional matters, she said it was only after Norton was appointed that any interest in consulting with the President was demonstrated.
If there is no agreement between the President and the Opposition Leader, Article 127 (2) of the Constitution provides for someone to be appointed to perform the functions of the Chancellor and Chief Justice (acting appointments).
Concerning Jordan’s contention that the delay of over two years in making the appointment constitutes a gross dereliction and abdication of duty on the President’s part, the Justice held that Article 127 (1) does not prescribe a time limit within which the President and Opposition Leader are to act to obtain an agreement, and Article 127 (2) does place any restriction as to the time limit within which a person is to perform the functions of the office of the Chancellor/Chief Justice.
“All convenient speed”
In the absence of time limits, the Judge emphasized, political actors must act with “all convenient speed” to make these substantive appointments, given their fundamental importance to the functioning of an equally important arm of the State —the judiciary.
The High Court Judge then went on to reason that what is considered “all convenient speed” would turn on the circumstances of each case, while noting that this is where the applicability of Section 39 of the Interpretation and General Clauses Act comes into play.
“The parties have a mandatory obligation to comply with the provisions of the Constitution to make these appointments. This requires active engagement, mutuality, and sincere receptivity by constitutional actors. While the Constitution does not give time limits as to when this process must begin or end, it is expected that even without the court’s intervention, the President and the Opposition Leader would act with some expedition to bring this impasse to a swift end.”
Given the particular circumstances of the case, Justice Younge concluded that the delay in initiating the process for the substantive appointment of the Chancellor and Chief Justice by the President is not a breach of the Constitution, nor did it amount to gross dereliction of duty.
The Judge added that there is no better way for the President to demonstrate his commitment to upholding the Constitution than by acting with alacrity to initiate the process, noting that the filling of these two top judicial posts should be given the “highest priority”.
“For two long, Guyana has been without substantive office holders for the two top positions in the judicial arm of the state, a situation which continues to be untenable and unacceptable to the citizenry and inimical to the independence of the judiciary that the supreme law of the land provides for. Any further delay in commencing this process should be eschewed so that this significant blot on the otherwise impressive Guyanese legal and judicial landscape is not perpetuated further,” the Judge said.
Despite the existence of Article 127 (2), she said, it could not be the intention of the framers of the Constitution that Article 127 (1) would not be complied with for decades, resulting in perpetual acting appointments, which are intended to be short-term and are made on a transient basis.
The Judge noted that Article 127 (2) ought not to be used as a lacuna or loophole through which the President and Opposition Leader can abdicate his/her mandatory obligation under Article 127 (1). Justice Younge opined that Article 127 (1) was fashioned by the framers with the aim of consensus building and political comity. This, she said, is a recognition that all political actors should have a part to play in the ultimate selection of these important constitutional posts.
According to her, Article 127 (1) envisages that some level of expediency in filling these vital constitutional offices would be exercised to ensure the competent functioning of the judicial arm of the state. She firmly pointed out that the absence of substantive appointments for a protracted length of time fails to insulate the judiciary from attacks on its independence, as provided for in Article 122 A, and that this threatens the fabric of Guyana’s thriving democracy.
In the end, the Judge dismissed Jordan’s FDA which listed the Attorney General as the respondent, and ordered the parties to bear their own costs in light of the public interest nature of the case.

Cause for concern
Since the Constitution was amended in 2001 to provide for the Chancellor of the Judiciary and Chief Justice to be appointed by the President after obtaining agreement from the Opposition Leader, no one has been confirmed in these two positions.
Currently, Justice Yonette Cummings-Edwards and Justice Roxane George, SC, are performing the duties of Chancellor and Chief Justice respectively.
The last confirmed Chief Justice was in the person of Dr Desiree Bernard, who served from 1996 to 2001. She also served as substantive Chancellor and Head of the Judiciary from 2001 to 2005.
The country’s inability to appoint a substantive Chancellor and Chief Justice for an extended period has been a cause for concern for its highest court, the Caribbean Court of Justice (CCJ), the Caribbean Association of Judicial Officers (CAJO), and the Bar Association of Guyana.
Attorney General Anil Nandlall, SC, 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 has conceded that the 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, signaling the need for constitutional reform. According to him, Guyana is the only country in the Commonwealth that has this constitutional provision.
Meanwhile, President Ali has time after time assured that he is committed to making the appointments, but only “when the time is right”.