– cites continuous probation as pressure on independence of office holders
By Jarryl Bryan
The trend of persons being appointed to act in top positions in Guyana’s judiciary for years while their confirmation remains in limbo has attracted the attention of the President of the Caribbean Court of Justice (CCJ).
The situation is being described as unfortunate, since such office holders have to issue rulings while their confirmation hangs like a ‘Sword of Damocles’ over their heads.
In particular, CCJ President, Sir Dennis Byron zeroed in on this situation 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, bluntly adding 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, Justice 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 elapse.
“Of course,” he admitted, “I do acknowledge that there are practical problems in identifying precisely where the liability lies in the failure to come to an agreement. It seems entirely plausible for such liability to lie with either the President or Leader of the Opposition, or both, in accordance with the mandate of section 127(1) and depending on the process that has been followed.
“This naturally raises the question of whether an appropriate statutory or regulatory framework to establish agreement is in existence. If the answer to this is in the affirmative, that may be a basis for judicial intervention.”
The CCJ President said that if the right framework to appoint the Chancellor and Chief Justice was not being used, now would be the opportune time to make regulatory or statutory changes. He noted that that too may be a basis for judicial intervention.
“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 the Chancellor and Chief Justice).
Any failure in fulfilling this obligation must, therefore, be regarded as a breach of the Constitution,” Sir Dennis also said.
Acting Chancellor of the Judiciary, Yonette Cummings-Edwards was appointed by President David 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.
Cummings-Edwards replaced Justice Carl Singh, who retired after acting as Chancellor since 2005. On the other hand, the current acting Chief Justice, Justice Roxane George, was also appointed to her position on the same day as Edwards.
