The decision by Opposition Leader Aubrey Norton to not respond to President Irfaan Ali’s communication requesting his agreement to the appointment of a substantive Chancellor of the Judiciary and a Chief Justice is most unfortunate. Art 127 of the Constitution stipulates, “The Chancellor and the Chief Justice shall each be appointed by the President, acting after obtaining the agreement of the Leader of the Opposition.” This was intended to secure bipartisan support for these two apex judicial positions since under our governmental system, the Judiciary is the arbiter of the Constitution, which demarcates the powers of the Executive and legislative branches of Government.
Guyana has not had a confirmed Chancellor for two decades – since Justice Désirée Bernard vacated the position in 2005 when elevated to the Caribbean Court of Justice (CCJ) Bench. She was succeeded by Justice Carl Singh, but bereft of the agreement by Opposition Leader Robert Corbin, he functioned as Acting Chancellor for 12 years until he retired in May 2017. He was succeeded by then acting Chief Justice Yonette Cummings-Edwards, as Acting Chancellor because no agreement could be reached between then President Granger and Opposition Leader Bharrat Jagdeo. It would appear that Justice Yonette Cummings-Edwards was simply a placeholder, since it was reported that President Granger had already approached sitting Belizean Chief Justice Kenneth Benjamin for the position as early as January 2017. Benjamin was a Guyanese who had been associated with the GDF while Granger had been a Brigadier.
As for the Chief Justice’s position, Justice Yonette Cummings-Edwards had acted in that capacity from December 2015 to May 2017 when she was appointed acting Chancellor. She has now proceeded on leave prior to retirement. Justice Roxane George, SC, had been appointed to succeed Cummings-Edwards in 2017 as Acting Chief Justice and has now been nominated by President Ali for the Chancellor of the Judiciary’s position. What this means is the status quo of not having a substantive Chancellor for two decades and a Chief Justice for one decade will continue.
This state of affairs had been trenchantly criticised by the now immediate past President of the CCJ, Justice Adrian Saunders when he addressed the Guyana Bar Association in April 2022. He said, “There is one significant blot on an otherwise impressive Guyanese legal and judicial landscape. 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 your final court, 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.” On stepping down from our Apex Appellate Court earlier this year, Justice Saunders reiterated that he found the unchanged situation “most regrettable”.
A month after Justice Saunders’ very pointed 2022 criticism, newly-elected Opposition Leader Norton had communicated to President Ali that he would agree to Justices Cummings-Edwards and George being confirmed substantively as Chancellor and Chief Justice respectively. President Ali demurred, but with Justice Cummings-Edwards now stepping down and he has now nominated Justice George – who evidently has the Opposition Leader’s confidence – it is somewhat anomalous that he has now rebuffed her. Pres Ali has selected Justice of Appeal Navindra Singh to act as Chief Justice.
We concur with Justice Saunders on the need for these appointments to become substantive, and note this is a symptom of our increasingly-divided politics which will paradoxically intensify the “judicialisation of politics”. “This refers to both the expansion of Judges’ powers at the expense of politicians and executives by conferring decision-making rights to the former, and the proliferation of legal discourse, procedures, and decision-making methods outside the judicial sphere.”
One criticism of this state of affairs – which is a growing worldwide phenomenon – is that political decisions will be made by individuals not elected through a democratic process. The professionalism of the Judiciary thus becomes critical and must be safeguarded by the citizenry.
