Substantive Chancellor, Chief Justice: Non-appointment a “significant blot” on Guyana’s impressive judicial landscape – CCJ President

Over two decades after a constitutional amendment was made to allow the two top judicial office holders to be appointed by the President after receiving agreement from the Opposition Leader, Guyana remains without a substantive Chancellor of the Judiciary and Chief Justice (CJ).

This deficiency in the judicial system has been a source of concern for both local and regional judicial bodies. President of the Caribbean Court of Justice (CCJ), Justice Adrian Saunders is the latest person to express his views on this impasse, calling on Guyana to remedy this regrettable situation with utmost urgency.
Justice Saunders arrived in Guyana last week to attend the Bar Association of Guyana’s Annual Bar Dinner which was held over the weekend at the Marriott Hotel in Georgetown after a two-year hiatus due to the COVID-19 pandemic.
Significant blot
While delivering the keynote address, Justice Saunders commended Guyana for the strides it has made in modernising the Judiciary and promoting the rule of law.
He, however, pointed out that there is a significant blot on an otherwise impressive Guyanese legal and judicial landscape. That is, the country has not appointed a Chancellor in 17 long years and a Chief Justice in several years. Justice Yonette Cummings-Edwards and Justice Roxane George, SC, are currently acting in the offices of Chancellor of the Judiciary and Chief Justice, respectively.
Justice Saunders said, “For the country to have not appointed a Chancellor for 17 long years is very disappointing; likewise, to be without an appointed Chief Justice for several years”. As the President of Guyana’s final court, he added, “I believe I have a right and a duty publicly to express the view that Guyana should not let this year pass and not remedy this regrettable situation”.

Formula has not worked
The procedure for the appointment of Chancellor and Chief Justice are outlined in Article 127 (1) and (2) of the Constitution of Guyana. It states therein: “The Chancellor and the Chief Justice shall be appointed by the President after obtaining the agreement of the Leader of the Opposition.”

During the opening of the April 2022 Demerara Criminal Assizes last Tuesday, the President of the Guyana Bar Association, Pauline Chase called for the formula for appointing the top judicial office holders to be reformed.
“…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 not working,” Chase said.
Attorney General Anil Nandlall, SC, responded to Chase that very day on his weekly programme —”Issues in the News”. In so doing, he conceded that the current 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.
He explained that since the addition of this provision to the Constitution in 2001, a sitting President has been unable to secure the agreement of the Opposition Leader on either of those appointments. Luckily, he added, an adjustment was made for an alternative if there is no agreement between the President and the Opposition Leader, that is, for the President to make acting appointments. The fact that Guyana has been unable to make substantive appointments in these two offices is “an unfortunate state of affairs”, Nandlall expressed.
Guyana’s last substantive Chancellor of the Judiciary was Justice Desiree Bernard who served from 2001 to 2005 when she demitted office to serve as a Judge of the CCJ which was inaugurated on April 16 of that year.
After then, several other Judges were appointed to act in the position including Justice Cummings-Edwards, who was sworn in by former President David Granger on March 27, 2017, following the retirement of Justice Carl Singh, who was also never confirmed in the post. Justice George was also sworn in to act as Chief Justice on March 27, 2017, following the retirement of the late Justice Ian Chang, SC.
Both Justices Cummings-Edwards and George previously worked in the Office of the Director of Public Prosecutions (DPP) before their elevation to the Bench.
The Attorney General recalled that efforts made under the previous Bharrat Jagdeo and Donald Ramotar presidencies to have Justice Cummings-Edwards and Justice George confirmed in their respective positions failed.

In fact, former President David Granger, under the A Partnership for National Unity/Alliance for Change (APNU/AFC) regime, had attempted in 2018 to appoint Guyana-born overseas-based Justice Kenneth Benjamin as substantive Chancellor of the Judiciary and Justice Cummings-Edwards as substantive Chief Justice.

Support for confirmation
Meanwhile, President Dr Irfaan Ali has publicly declared his support for the confirmation of Justices George and Cummings-Edwards as Chief Justice and Chancellor, respectively. The Head of State has already made it clear that their appointments were dependent on then Opposition Leader Joseph Harmon.
But Harmon 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 this week.
According to Nandlall, only two countries in the Commonwealth including Guyana have such a formula in place for the appointment of their top judicial officers. And with Guyana about to embark on constitutional reform, he expressed hope that stakeholders can learn from the lessons and prevent another situation where Guyana has an acting Chief Justice and Chancellor for decades.
To make his point, the Attorney General said, “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 turned out to be impossible”.

Previous calls
This is not the first time the CCJ President has bemoaned Guyana’s inability to appoint a substantive Chancellor of the Judiciary and Chief Justice. Shortly after he was appointed to the helm of the regional court in 2018, Justice Saunders had called on Guyana’s political directorates to urgently resolve their issues and appoint a substantive Chancellor of the Judiciary and Chief Justice, saying that the current stalemate has implications for the proper running of Guyana’s courts.
While noting that it was not his place to say what measures are to be put in place to break the deadlock, Justice Saunders had expressed, “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”.
Back in 2017, former CCJ President Justice Dennis Byron, as he then was, had also expressed that having Judges acting in the position of Chancellor and Chief Justice is a “most unfortunate state of affairs”. He was at the time delivering the keynote address at the Guyana Bar Association’s 37th Annual Bar Dinner.
While noting that the prolonged acting appointments pose a genuine risk to the promise to citizens of an independent and impartial Judiciary, Justice Byron described it as a “very serious issue” adding that attacking the problems of delay and all other issues that need reform requires strong leadership.
During its biennial conference in 2019, the Caribbean Association of Judicial Officers (CAJO) expressed concerns over lengthy acting appointments for heads of judiciaries while making specific reference to Guyana’s situation. Guyana’s acting Chancellor and acting Chief Justice had attended this conference.
The CAJO had previously explained that given the context of the role of the Judiciary, not being able to confirm candidates for these top judicial roles goes against the grain of establishing public trust and confidence in the court system. (G1)