PNC withheld confirmation of CJ, Chancellor – former AG

Acting appointments

…Jagdeo, Ramotar were willing to confirm incumbents

The debate continues surrounding office holders of top judicial posts being forced to remain in an acting role throughout their tenure. Lending his voice to the debate, former Attorney General Anil Nandlall claimed that it was then Opposition Leaders Robert Corbin and David Granger who withheld confirmation.

According to Nandlall, in a missive he penned on the issue, there were several meetings with then President Bharrat Jagdeo and then Opposition Leader Robert Corbin to seek an agreement on the appointments of the Chancellor of the Judiciary and the Chief Justice. At the time, Justice Carl Singh and Justice Ian Chang acted in these positions.
“I recall that for a greater part of those engagements, President Jagdeo’s position was a preparedness to confirm the incumbents in office. These propositions failed to meet with the agreement of the then Leader of the Opposition.”
“As far as I am aware, during that period and indeed until they both departed the Bench, neither their competence nor suitability to hold those offices were ever publicly questioned. Yet, an agreement to appoint them, substantively, proved elusive.”

He said that when Donald Ramotar and David Granger assumed office as President and Opposition Leader, respectively, the engagements continued; with Ramotar continuing to adopt the position of his predecessor to confirm the incumbents.
“Like his predecessor, Mr Granger withheld his agreement. As Attorney General, I had the privilege of being present at most of those engagements. I recall, through the President, requesting of the then Leader of the Opposition, to assemble in writing, the reasons for his objections to the President’s position, since it was agreed by both sides that the incumbents, at that time, had both demonstrated their competence and, indeed, had accumulated a track record of success, as actors in those positions.”
Nandlall noted that unfortunately, no such reasons were ever presented by Granger. He further noted that when they were replaced, now President David Granger did not attempt to secure the agreement of the Leader of the Opposition before making those two appointments.
“Rather, he chose to invoke Article 127 (2) of the Constitution as a first option, thereby ignoring Article 127 (1). Why the President would not want to seek agreement to confirm the current holders in office, I would leave open to your own inferences. To date, no such attempt has been made,” Nandlall revealed.
Just recently, Caribbean Court of Justice (CCJ) President, Sir Dennis Byron zeroed in on the trend of persons being appointed to top positions in Guyana’s judiciary, but being forced to act for years while their confirmation remains in limbo.
In a recent address to the Guyana Bar Association, he condemned the fact that since former Chancellor Desiree Bernard demitted office, an agreement has not been reached for the substantive appointment of a Chancellor.
“This has brought us to the situation today where the number one and number two officials of the Guyana judiciary have not been substantively appointed. This is a most unfortunate state of affairs,” the legal luminary stated.
“This situation has moved well beyond what ought to be acceptable in a modern democracy where respect for the rule of law is maintained. The Constitution envisages the judiciary of Guyana to be headed by officials who are substantively appointed and enjoy all the legal and institutional mechanisms to secure their tenure,” he continued.
Referring to Article 122 A (1); which states that “all courts and all persons presiding over the courts shall exercise their functions independently of the control and direction of any person or authority; and shall be free and independent from political, executive and other form of discretion and control”, Byron bluntly stated that the delay was a breach of the spirit and intent of the Constitution.
Article 127 (2) of the Constitution states, “If the office of Chancellor is vacant … then until a person has been appointed to and has assumed the functions of such office…the 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.”
Commenting on this, Byron noted that the language of the Act suggests that the appointment was to be a short-term one, before a substantive appointment. He noted that even from a subjective analysis, the Constitution never intended for the years it has taken to fill the substantive positions to pass.
Byron noted that the delay in complying with Section 127(1) of the Constitution has long breached a level of justifiability and the most appropriate authority for resolving this situation is the court system.
“Section 127 (1) ascribes an obligation to the President and the Leader of the Opposition that is mandatory in nature and not discretionary (to appoint Chancellor and Chief Justice). Any failure in fulfilling this obligation must, therefore, be regarded as a breach of the Constitution,” Byron also said.
Acting Chancellor of the Judiciary, Yonette Cummings-Edwards was appointed by President Granger in May of this year. Prior to that, she acted as the Chief Justice from December 2015. She was never confirmed to the substantive position.
Edwards replaced Justice Carl Singh, who retired after acting as Chancellor since 2005. The current Acting Chief Justice, Justice Roxane George was also appointed to her position on the same day as Edwards.