The Opposition has asked the High Court to compel President Dr Irfaan Ali to make substantive appointments to the offices of the Chancellor of the Judiciary and Chief Justice within two months, even as Attorney General Anil Nandlall, SC contends that the court cannot direct the Head of State, who has constitutional immunity from prosecution.
In June of last year, Opposition Parliamentarian Vinceroy Jordan filed a Fixed Date Application (FDA) asking a Judge to direct the President to forthwith initiate the process contemplated by Article 127 of the Constitution of Guyana to make appointments to the two top judicial posts.
The procedure for the appointment of the Chancellor and Chief Justice is outlined in Article 127 (1) of the Constitution, which states: “The Chancellor and the Chief Justice shall be appointed by the President after obtaining the agreement of the Leader of the Opposition.”
It has been over 21 and 17 years respectively since Guyana has had a confirmed Chief Justice and Chancellor. The last confirmed Chief Justice was Desiree Bernard, who served from 1996 to 2001; she also served as Chancellor from 2001 to 2005. Justices Yonette Cummings-Edwards and Roxane George, SC have been acting as the Chancellor and Chief Justice respectively.
During oral arguments before High Court Judge Damone Younge on Wednesday, Jordan’s lawyer, Roysdale Forde, SC, submitted that since President Ali assumed office on August 2, 2020, he has failed to initiate any process contemplated by Article 127 of the Constitution to make permanent appointments.
According to the Senior Counsel, this “delay” is a clear case of Dr Ali’s refusal to initiate the required constitutional process. He said the President has publicly stated that he would not initiate the process to make the appointments until the Opposition recognises the legitimacy of the PPP/C Government.
Opposition Leader Aubrey Norton, Forde added, has expressed to President Ali that he is committed to agreeing to the confirmation of Justices Cummings-Edwards and George in their respective posts. Considering this, counsel argued, there is no reasonable or constitutional excuse the President can provide to substantiate this delay in making the appointments, while calling the non-appointment a gross dereliction and abdication of Dr Ali’s presidential duties.
He thus requested that the President be given a two-month deadline to comply with Article 127.
Attorney General Nandlall, in reply, told the court that upon taking office, President Ali had a “whole series” of engagements with then Opposition Leader Joseph Harmon. He alluded to a series of events which, according to him, stalled the appointment process, including Harmon contending the PPP/C Government was “illegal and installed” and the PNC/R’s internal elections in which Norton prevailed over Harmon.
Even though these are political matters, Nandlall pointed out, they had a bearing on the President filling the vacancies.
The language of Article 127, the Attorney General contended, is unambiguous and does not set a timeframe by which the Head of State is bound to make the appointments.
Although President Ali is conferred with absolute power to make the appointments, Nandlall accepted that he can only exercise this power upon agreement from the Opposition Leader.
The Office of the Opposition Leader was vacant following the resignation of Joseph Harmon on January 26, 2022. Norton — Leader of the PNCR —was appointed Opposition Leader on April 13, 2022. In light of this, Nandlall stressed, “There was nobody that the President can consult.”
When Norton became Opposition Leader, the President immediately engaged him to fill constitutional appointments, said Nandlall to the court, as he referred to the appointment of the Police Service Commission (PSC), the Integrity Commission, and the Teaching Service Commission. He advances that Article 127 empowers the Head of State with the latitude of commencing engagement for constitutional appointments as well as the liberty to choose which one he will be engaged in firstly.
“A President is entitled to say, ‘I will work to address these vacancies first’.” For context, Nandlall referred to engagements between Norton and the President on the appointment of the Police Service Commission — a constitutional body that is vital for appointing a Commissioner or acting Commissioner of Police.
According to him, the President had to move swiftly in appointing a Top Cop in the interest of national security, as opposed to making substantive appointments to the two top judicial posts, which are currently filled by acting appointments and which have been so for over 20 years.
The Senior Counsel said he has never seen a Head of State of a country, more so one with executive powers, being directed by a court of law to carry out his/her functions. Even though the President has presidential immunity (not answerable to the court), Nandlall disclosed, on numerous occasions, he has argued against the President violating the Constitution, but said he did not ask for coercive orders against the Head of State, as is being done by Forde, only declaration.
He maintained that President Ali is not acting in breach of the Constitution, but should the court find a breach, having regard to the peculiar circumstances and the fact that Article 127 has been violated for over two decades, it would be unfair and unreasonable to hold President Ali in violation of the Constitution or guilty of unreasonable conduct. Justice Younge will rule on March 7 at 14:30h.
Nandlall went on to inform the court that President Ali is working on re-appointing the Judicial Service Commission (JSC) which expired since September 2017. The JSC is critical to the appointment of Judges other than the Chancellor and Chief Justice, Magistrates and other judicial officers, including the Registrar and Deputy Registrar of the Supreme Court of Judicature.
Faced with an increasing workload, the Chancellor, while addressing the opening of the new law year on Tuesday, said: “We need more judges. We need the Judicial Service Commission to be established ASAP (as soon as possible). We are facing increased caseloads. Judges are now overburdened, they are exhausted, they are nearly worn out, and they are, in some cases, burned out.
The country’s inability to appoint a substantive Chancellor and Chief Justice for an extended period has been a cause for concern for several bodies, like the Caribbean Court of Justice (CCJ), the Caribbean Association of Judicial Officers (CAJO), and the Bar Association of Guyana.
President of the Caribbean Court of Justice (CCJ) Justice Adrian Saunders, in April of last year expressed his views on this impasse, calling on Guyana to remedy this “regrettable situation” with utmost urgency, recommending that the country should do so by the end of 2022.
Nandlall 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 had 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, and that constitutional reform may be needed to remedy the state of affairs.
Guyana is the only country in the Commonwealth with this constitutional provision.
Late last year, President Ali had told the media: “We have no issues appointing (the Chancellor and Chief Justice), but when the right time comes, we will have the consultations…”
