The High Court on Wednesday ruled that President Dr Irfaan Ali’s failure to make substantive appointments to the offices of the two top judicial posts—Chancellor of the Judiciary and Chief Justice—does not amount to a dereliction of duty nor does it contravene the Constitution.
The decision was handed down on Wednesday by High Court Judge Damone Younge in the Fixed Date Application (FDA) brought by Opposition Parliamentarian Vinceroy Jordan.
In that FDA, Jordan had asked the High Court to declare that the Head of State’s failure to make the appointments between August 2020 and April 2022 amounted to a gross dereliction and abdication of his duties. He had also sought an order directing the President to forthwith initiate the process contemplated by Article 127 of the Constitution to fill the important judicial posts.
Article 127 (1) of the Constitution states: “The Chancellor and the Chief Justice shall be appointed by the President after obtaining the agreement of the Leader of the Opposition.”
While delivering her ruling, Justice Younge pointed out that President Ali cannot be faulted for the delay in the appointment because there was no Opposition Leader for him to consult between January 26, 2022, and April 12, 2022. Joseph Harmon resigned as Opposition Leader on the former date while Aubrey Norton was elected as the new Opposition Leader on the latter.
Even after Norton had been appointed, she said that he himself contributed to the delay as he refused to meet with the President.
“From the period August 2020 when he [President Ali] took office to April 2021, when Mr Norton was appointed the Leader of the Opposition, there was no reciprocal party with whom [the President] could have engaged given the refusal of the then Leader of the Opposition to engage.”
“A delay occasion by these circumstances is fair, reasonable, and rationale,” the Judge said.
Based on the evidence before the court and while alluding to the various correspondence between the President and Norton on constitutional matters, she said that it was only after Norton was appointed that any interest in consulting with the President was demonstrated.
If there is no agreement between the President and the Opposition Leader, Article 127 (2) provides for a person to perform the functions of the two offices (acting appointments).
Concerning Jordan’s contention that the delay of over two years in making the appointment constitutes a gross dereliction and abdication of duty on the President’s part, the Justice held that the Article 127 (1) does not prescribe a time limit within which the President and Opposition Leader are to act to obtain an agreement, Article 127 (2) does place any restriction as to the time limit within which a person is to perform the functions of the office of the Chancellor and Chief Justice nor does it place any time limit for agreement or consultation.
In the absence of time limits, the Judge emphasised that political actors must act with “all convenient speed” to make these substantive appointments given their fundamental importance to the functioning of an equally important arm of the State—the judiciary.
The High Court Judge then went on to reason that what is considered “all convenient speed” would turn on the circumstances of each case, while noting that this is where the applicability of Section 39 of the Interpretation and General Clauses Act comes into play.
“The parties have a mandatory obligation to comply with the provisions of the Constitution to make these appointments. This requires active engagement, mutuality, and sincere receptivity by constitutional actors. While the Constitution does not give time limits as to when this process must begin or end, it is expected that even without the court’s intervention, the President and the Opposition Leader would act with some expedition to bring this impasse to a swift end.”
Given the particular circumstances of the case, Justice Younge concluded that the delay in initiating the process for the substrate appointment of the Chancellor and Chief Justice by the President is not a breach of the Constitution nor does it amount to gross dereliction of duty.
In the end, the Judge dismissed Jordan’s FDA which listed the Attorney General as the respondent, and ordered the parties to bear their own costs in light of the public interest nature of the case.
Since the Constitution was amended in 2001 to provide for the Chancellor of the Judiciary and Chief Justice to be appointed by the President after receiving agreement from the Opposition, no one has been confirmed in these two posts. Currently, Justice Yonette Cummings-Edwards and Justice Roxane George, SC are performing the duties of Chancellor and Chief Justice, respectively.
The last confirmed Chief Justice was in the person of Desiree Bernard who served from 1996 to 2001; she also served as substantive Chancellor from 2001 to 2005.
The country’s inability to appoint a substantive Chancellor and Chief Justice for an extended period has been a cause for concern for its highest court, the Caribbean Court of Justice (CCJ), the Caribbean Association of Judicial Officers (CAJO), and the Bar Association of Guyana.
Meanwhile, Attorney General Anil Nandlall, SC, had previously said that, regrettably, some 20 years after Guyana’s Constitution was amended to facilitate the appointments of top judicial officers by the President with the agreement of the Opposition Leader, there is yet to be a substantive appointment of a Chancellor and Chief Justice. 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, signalling the need for constitutional reform.
According to him, Guyana is the only country in the Commonwealth that has this constitutional provision. President Ali has time after time assured that he is committed to making the appointments but only “when the time is right”.
