Formula for appointment of Chief Justice, Chancellor not working – AG

Attorney General and Legal Affairs Minister Anil Nandlall SC has agreed that the current formula that requires consensus between the President and the Opposition Leader for the appointment of a Chief Justice and Chancellor, has not worked in the more than two decades it was put in place.

His statement came on the heels of President of the Guyana Bar Association, Pauline Chase, on Tuesday calling for the formula to be changed when it comes to appointing the two top judicial officers. During her remarks at the opening of the Demerara April Assizes, Chase urged “…those who the duty so falls to start the consultative process and put into motion the machinery to address the correction of this unworkable and failed formula… It is, therefore, inimical to the rule of law that there are acting appointments of our highest judicial officers. The absence of confirmed judicial officers since the amendment of the Constitution for their appointments some 20 years ago is no clearer evidence that that system is no working.”
Article 127 (1) of the Constitution of Guyana states “The Chancellor and the Chief Justice shall each be appointed by the President, acting after obtaining the agreement of the Leader of the Opposition.”
But during his weekly programme – Issues In The News, AG Nandlall contended that this process simply does not work.
“The reason being that since its addition to the constitution in 2001, a President has never been able to secure the agreement of the Leader of the Opposition in either of those appointments. As a result, since 2001, we have had no Chief Justice appointed and no Chancellor of the Judiciary appointed. That is an unfortunate state of affairs,” he posited.

Formula
According to Nandlall, only two countries in the Commonwealth including Guyana have such a formula in place.
“All I’m stating is the facts, the formula has not worked… That recommendation, for there to be agreement, I have no doubt was born out of the best of intentions, but it simply has not worked and perhaps that is why we are one of the two countries in the world where that formula exists.

The Attorney General outlined that it was the very Bar Association that was among those that supported the current formula in place for the appointments of the two senior judicial office-holder. Fortunately, he added, an adjustment was made for an alternative in the event that there is no agreement between the President and the Opposition Leader, that is, for the President to make acting appointments to have those positions filled.
Consequently, since 2005, upon the retirement of former Chancellor Desiree Bernard, there has been no confirmed Chancellor. Retired Justice Carl Singh served as acting Chancellor from 2005 until his retirement in 2017.
Similarly, the late retired Justice Ian Chang was appointed acting Chief Justice in 2005 and served in position until his retirement in 2015.
AG Nandlall recalled that efforts under the President Dr Bharrat Jagdeo and President Donald Ramotar administrations to have the two jurists confirmed in their respective positions had failed.
With Justice Roxane George being appointed acting Chief Justice since 2017 and Justice Yonette Cummings-Edwards acting as Chancellor since 2017, Nandlall also revealed that even attempts to appoint these two judges substantively were futile.
In fact, former President David Granger, under the APNU/AFC regime, had moved in 2018 to appoint overseas-based Justice Kenneth Benjamin as substantive Chancellor of the Judiciary and Justice Cummings-Edwards as substantive Chief Justice.
However, he was unable to secure the approval of then Opposition Leader, PPP/C’s Bharrat Jagdeo, as required by the Constitution. Since then, there has not been any consensus between the two on the matter.

Support for confirmation
Meanwhile, the current Dr Irfaan Ali-led government has publicly declared its support for the confirmation of Justices George and Cummings-Edwards as Chief Justice and Chancellor, respectively. Up to last August, the Head of State indicated that their substantive appointments were dependent on then Opposition Leader Joseph Harmon.
But Harmon has resigned as Opposition Leader in January this year and PNCR’s Leader Aubrey Norton is slated to take up the post after he is sworn-in as an APNU/AFC Opposition Member of Parliament next week.
Nevertheless, Nandlall further pointed out during his programme that as with Guyana about to embark on a constitutional reform exercise, he hopes that stakeholders can learn from the lessons learnt and prevent another situation where Guyana has an acting Chief Justice and Chancellor for decades.
“The thing does not work. It makes no sense putting into law, and worse yet putting into a Constitution, a mechanism that is going to cause deadlock, and here you’ve had deadlock now for [nearly] two decades. I don’t think we need more lessons; we have 22 years of experience. So, when we start the constitutional reform process, I hope we will be guided by these real examples and don’t make fanciful recommendations, idealistic and unreal recommendations… that turnout to be impossible,” the AG asserted.
This is not the first time Guyana is being asked to review this formula. President of the Caribbean Court of Justice (CCJ) Justice Adrian Saunders during his visit to Guyana in August 2018 had urged the Guyanese authorities to revisit this procedure.
“That formula is likely to throw up this kind of situation and so perhaps some attention should be given to perhaps whether that is an appropriate formula or if the formula is to be kept, what other mechanisms should be put in place to break a deadlock. But for the country to not have a chancellor, and it has implications for the chief justice as well because it just cascades down for that length of time, it’s just not right,” the CCJ had posited, while noting, however, that it is not his place to say what measures should be put in place to break the deadlock. (G8)