Appointment of top judicial posts rests on Harmon’s recognition of Govt – President Ali

The appointment of a substantive Chancellor of the Judiciary and Chief Justice rests on Leader of the Opposition Joseph Harmon’s public recognition of the PPP/C Government, said President Irfaan Ali who has expressed his willingness in moving forward with the process.

The Head of State was on Monday addressing the nation on the anniversary of his Government’s first year in office.
The procedure for the appointment of Chancellor and Chief Justice are outlined in Article 127 (1) and (2) of the Constitution of Guyana. Article 127 (1) states: “The Chancellor and the Chief Justice shall be appointed by the President after obtaining the agreement of the Leader of the Opposition”.

Article 127 (2) states: “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 or her office, or if the person holding the office of Chief Justice is for any reason unable to perform the functions of his or her office, then, until such a person has been appointed to and assumed the functions of such office or until the person holding such office has assumed 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.”
Given these constitutional provisions, President Ali said, “The appointment of Chancellor and Chief Justice is a parliamentary process. In the case of the appointment of the Chancellor and Chief Justice, there have to be consultations directly between the President and the Leader of the Opposition.”

President Ali further stated that he knows definitively who is the Leader of the Opposition and who is the President of Guyana and that he is sure Harmon is also aware of this. “So, the ball is in his [Harmon’s] court to do the right thing. I am a very positive person, and I am 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.”
But Harmon and the rest of the APNU/AFC coalition continue to claim to the Government is illegitimate, and has refused to engage with it on matters of national interest. Both of the coalition’s two election petitions in which it was seeking to invalidate the results of the March 2, 2020 National Elections have been dismissed. The petitioners have now moved to the Court of Appeal in their bid to reinstate them.

“The Leader of the Opposition has still not issued any statement recognising the legitimacy of the Government, so I don’t know who I am consulting with, I know he is the Leader of the Opposition but I am not sure he knows who he is consulting with,” the Head of State pointed out.
Over the last 16 years, Guyana has failed to appoint a substantive office holder to the position of Chancellor of the Judiciary. The position of Chancellor of the Judiciary has not had a substantive office holder since 2005 – retired Judge Desiree Bernard served from 2001-2005 when she left to serve as a Judge of the Caribbean Court of Justice (CCJ).

After then, several other Judges were appointed to act in the position including the current Chancellor, Justice Cummings-Edwards, who was sworn in by President David Granger on March 27, 2018, following the retirement of Justice Carl Singh, who was also never confirmed even after acting for a decade.
Justice Cumming-Edwards also served as acting Chief Justice from 2015-2017. After she was appointed to the helm of the Judiciary, Justice Roxane George, SC, was appointed acting Chief Justice in March 2018. Justice Ian Chang, SC, served as Guyana’s acting Chief Justice for over a decade before retiring in 2015.
The country’s inability to appoint a substantive Chancellor and Chief Justice has been a cause for concern for regional bodies like the Caribbean Court of Justice (CCJ) and the Caribbean Association of Judicial Officers (CAJO).
In fact, in 2018, President of the CCJ Justice Adrian Saunders had called out Guyana for the long-overdue appointments to the top judicial posts. Justice Saunders expressed that the country’s failure to make substantive judicial appointments for so long is a significant strain on the rule of law and had urged political leaders to resolve the impasse as soon as possible.
At the time, the local legal fraternity, including the Guyana Bar Association (GBA), was calling for the substantive appointments of both Justice Cummings-Edwards and Justice George.
In January 2017 a panel of distinguished jurists – retired Justices Claudette Singh, James Patterson, and Law Professor Harold Lutchman – had by October of that year recommended Justice Kenneth Benjamin, a Guyanese by birth, to serve as Guyana’s Chancellor.
At that time, Justice Benjamin was serving as Belize’s Chief Justice; he has since retired.
However, then-President David Granger and then Opposition Leader Bharrat Jagdeo could not agree on the appointments. The President’s choice for Chancellor was Justice Benjamin, while his nominee for Chief Justice was Justice Cummings-Edwards. These nominees were not favourable to Jagdeo, so President Granger went ahead with the acting appointments.
Meanwhile, Attorney General Anil Nandlall, SC, during an interview back in December 2020, 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.
And with consultations between Presidents and Opposition Leaders being unsuccessful over recent years, Nandlall 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.”
The Attorney General, nevertheless, hopes that Harmon will recognise the legitimacy of the PPP/C Government and sit with President Ali to begin constructive engagements that can see the positions being filled by confirmed appointments.