Both Chancellor Carl Singh and Chief Justice Ian Chang still to be confirmed after years of holding the two posts. However, while opposition Leader David Granger says confirming the appointments is a question of the government fulfilling its constitutional obligation, Attor-ney General Anil Nandlall is claiming that efforts have been made by both former president Bharrat Jagdeo and current President Donald Ramotar but they have been in vain.
The AFC last Monday urged that the candidates for the posts be identified and confirmed so as to avoid the judiciary falling victim to the current difficulties and suspicions that have enmeshed the executive and the legislature.
Granger told Stabroek News that ball is in President Ramotar’s court. “…It is not for the opposition to approach the government, it is for the government to approach the leader of the opposition and there is a constitutional requirement for the leader of the opposition to agree but that hasn’t happened as yet,” he explained.
When asked if the issue ranks high among the list of priorities for the opposition, he responded: “We are anxious. We are unhappy with the fact that the chancellor has been acting for probably about six years and we would like to get the position confirmed.”
The non-confirmation of two posts has been a topic of debate over the last few years.
In its statement last Monday, the AFC argued that Nandlall’s legal actions to challenge the decisions made in the National Assembly—which it maintained was a quest to have the judiciary determine matters within the jurisdiction of the legislature—have placed a “significant burden” on the judiciary. Under those circumstances, the AFC warned that the country faces the prospect of the judiciary being exposed to the “possible indignity” of allegations of bias.
In support of its contention, it pointed to the publication, ‘The Independence of the Judiciary,’ in which the view from the Lord Chancellor’s Office quoted Professor Robert Stevens as saying that “the prospect of promotion (had) sullied the purity of the relationship between the Judiciary and the Executive.”
It also referred to Lord Bingham of Cornwall, who in his book ‘The Business of Judging’ opined that “In modern democratic societies judges continue to occupy a privileged position, but for quite different reasons. Now privilege springs from public recognition that democratic government and society as a whole can only function fairly and properly within a framework of laws, justly and fairly administered by men and women who have no obligation save to justice itself.”
After failures by successive presidents and opposition leaders have been unable since 2001 to agree on the appointment of a Chancellor, the AFC noted that the consequence of this situation is that the country currently has an “acting Chancellor” and “acting Chief Justice” at a time when the executive and legislature are about to engage in “open hostilities” before the judiciary.
“To compound this already difficult situation is the fact that the acting Chancellor has assigned to the acting Chief Justice the hearing of all constitutional matters,” it said, while adding that the inability to achieve consensus on the identification of candidates to be made permanent in those two positions is unlikely to engender confidence in the administration of justice in the light of the executive’s declared hostilities against the legislature.
“In order to avoid the third arm of the state falling prey to the current difficulties and mutual suspicions which have metastasized in the other organs of the state, we urge that as a matter of urgency that the candidates for appointment to the principal positions in the judiciary be identified and appointed in confirmed positions,” the party further said affirming that unless there is a strong and independent judiciary, it could part or the source of a new contretemps.
The party’s call attracted a response from Nandlall, who, in a letter published in the daily newspapers, contended that it was another opposition attack on the integrity and independence of the judiciary. He also laid the blame for the non-confirmation of the posts squarely at the feet of the opposition, saying it failed to meet with Jagdeo and Ramotar to have the issue straightened out.
Disappointed
Chairman of the AFC Nigel Hughes said last night that his party is disappointed that Nandlall would view its concern about the non identification and appointment of a confirmed Chancellor “as an attack on the integrity of the acting Chancellor and Chief Justice.”
He said that it is unacceptable in a functioning democracy that after a decade “a Chancellor cannot be identified and confirmed.” He added that there is no restriction on the list of potential candidates, including local, regional and international jurists.
According to Hughes, it might have escaped Nandlall’s attention that the concern the AFC expressed was about the inability to identify and agree on candidates for the respective posts and the consequent disadvantage to which the Chancellor and Chief Justice are placed as a result. He said that his party’s concerns were not about their integrity but the fact that their integrity, through no fault of their own, may be adversely commented upon because of their acting positions.
“The challenges which the judiciary confronts are not insignificant, they include the non appointment of the bar’s representative to the [Judicial Service Commission], the fact that the last administration identified the acting Chancellor and acting Chief Justice as the only persons in the judiciary to enjoy income tax free status, the fact that the JSC consists only of ex officio [members] and the fact that there are currently sitting judges who have been acting for in excess of five years,” he added.
Hughes, who is also an attorney-at-law, further said that one would have thought that it was in the interest of the integrity of not only the Chancellor and the Chief Justice but the entire judiciary that they enjoy confirmed appointments.
In his letter, Nandlall had defended his resort to the court for redress, saying it is the government’s exercise of its democratic right and constitutional freedom, despite opposition accusations that labelled it a “war” against the legislature.
He added that the AFC’s concern that the government could benefit from the unconfirmed appointments constituted “a most callous assault on the integrity and reputation” of Singh and Chang, whom he described as “two distinguished jurists of this land who have served their country with distinction”.
He said that the AFC, whose leadership consists of several lawyers, fully well know that the persons who are acting in those two offices are, substantively, the Chief Justice of the country and a Justice of Appeal and therefore they currently enjoy “the most impregnable security of tenure that the constitution offers by virtue of those substantive appointments.”
Nandlall also suggested that that AFC’s statement could be a veiled attempt to intimidate Chang, who currently has conduct of a matter filed by him, challenging the opposition’s actions in the National Assembly, which resulted in the Speaker prohibiting the Home Affairs Minister Clement Rohee from discharging his duties in the House.
“Significantly, the makers of this statement, either by design or because of unfamiliarity with the issue, omit to acknowledge the documented efforts of both former President Bharrat Jagdeo and President Donald Ramotar to secure the agreement of the Leader of the Opposition, as is constitutionally required, to fill these vacancies,” he said, adding that these efforts were futile, although the administration remains hopeful that an agreement can be reached. Towards this end, he urged AFC to focus its attention on encouraging Granger to respond to the president‘s overtures to fill these vacancies.
