While encouraging both Government and the Opposition to work towards reaching a consensus, the Bar Council of the Guyana Bar Association (GBA) has warned that if President David Granger acts outside of the Constitution in appointing a Chancellor and a Chief Justice, then it would be void.
The GBA reinforced that the appointment of the Chancellor and Chief Justice is governed by Article 127 of the Constitution of Guyana, the country’s supreme law, which states that these persons shall each be appointed by the President and in agreement with the Opposition Leader.
Opposition Leader Bharrat Jagdeo
“Any action outside of the said Article 127 is unconstitutional, void, of no legal effect and would have embarrassing consequences,” the GBA said on Tuesday, while explaining that Article 127(1) of the Constitution, which reinforces that, is also clear in its meaning and effect.
According to the Association, the current climate surrounding the offices of the Chancellor and Chief Justice is repugnant and shakes the public confidence in the legal system. “It further unfairly undermines the dignity of the offices and office holders,” the GBA opined.
It was also noted that if for whatever reason the President and Opposition Leader cannot reach agreement under Article 127(1), only then is Article 127(2) is invoked. The GBA reminded that an acting appointment is made by the President after “meaningful consultation” with the Opposition Leader also.
According to Article 127 (2) of the Constitution; “If the office of Chancellor or Chief Justice is vacant… then, until a person has been appointed…, those functions shall be performed by such other of the Judges as may be appointed by the President”.
President David Granger
“This has been done and therefore Article 127(2) has been fulfilled and exhausted. It is only if any of the provisos in the said Article 127(2) occur can it be invoked once again, failing which, the acting appointments continue until a substantive appointment can be made under Article 127(1),” the GBA added.
The association therefore reasoned that acting Chancellor Yonette Cummings-Edwards and Chief Justice Roxane George cannot be removed and replaced by other acting appointees.
Given the current circumstances surrounding this issue, the GBA has urged both parties to work to break the impasse and arrive at a consensual resolution, especially in keeping with the spirit and intent of Article 127 of the Constitution, which it reminded was amended from its original form to foster collaboration.
Following Opposition Leader Bharrat Jagdeo’s rejection of the nominees for the Chancellor of the Judiciary and Chief Justice posts, President David Granger has publicly stated that he wants to rid State offices of acting appointments, and as such, he will be meeting with his legal team to ascertain the way forward as it relates to the appointments of these two top judicial positions.
Jagdeo in a letter addressed to the President, which was released to the media, said after having duly considered the nominations of Justice Kennett Benjamin and Justice Yonette Cummings-Edwards under Article 127 (2) of the Constitution, he was unable to offer his agreement for their appointments.
His decision followed after a request was made to conduct background checks for one month. However, Jagdeo had since indicated his willingness to further engage the President on substantive appointments to these positions.
But Minister of State Joseph Harmon had announced recently that President Granger could go ahead with the appointment of Justice Kennett Benjamin as Chancellor and Justice Cummings-Edwards as Chief Justice, as “Government will be relying on provisions within the Constitution going forward.”
Harmon could not say whether the President will appoint his nominees in an acting or substantive role under those constitutional provisions.
The President also said he does not believe that the courts should be “paralysed by the behaviour of one person,” referring to Jagdeo’s rejection of the nominees. Jagdeo has since responded to the President’s comments stating that he (President) is either being dishonest or losing his memory when it comes to the issue of substantive appointments of the key judicial positions.
He recalled that Granger himself, who was leader of the then Opposition People’s National Congress (PNC) refused to agree to these very appointments of persons in those positions when the People’s Progressive Party/Civic was in office.
The Opposition Leader accused the President of being the one who stymied the system for close to six years and only when he asked for one month; the blame has suddenly shifted to him.
Given the Government’s insistence to have these appointments done, the Opposition has vowed to challenge any unconstitutional move by President Granger.
