If the President and the Opposition Leader needed any further admonition about substantive appointments to the top two posts in the judiciary they heard it in a stinging rebuke from the incoming head of the CCJ, Justice Adrian Saunders.
Calling Guyana’s failure to make substantive judicial appointments a “significant stain” on the rule of law, the President-designate of the Caribbean Court of Justice (CCJ) said on Thursday that the situation is inexcusable.
“The ability of the judiciary to resolve matters must be a critical dimension of the rule of law. In this regard, I have to say a significant stain on the rule of law so far is Guyana’s inability over the last 13 years to appoint a substantive office holder to the position of Chancellor…There really can be no excuse for that kind of situation,” he said while presenting on `The rule of law and the Caribbean Court of Justice’ at the Fourth Conversation on Law and Society, hosted by the University of Guyana.
Both of the major political groupings are responsible for the protracted delay in having a substantive Chancellor and Chief Justice appointed. President Granger now holds the reins of power and seems oblivious to the commitment in the APNU+AFC manifesto to break the deadlock which has dominated the process and improve the quality of governance. Three years have now passed since APNU+AFC acceded to office and it is still to succeed in having a substantive Chancellor and CJ, a move which would provide tenure and security to these officeholders and reduce the opportunity for political pressure on them. Far from breaking the deadlock, the stalemate has become even more entrenched and politically divisive.
Following the demitting from office of the former acting Chancellor and CJ, Justices Singh and Chang respectively, the President embarked on a lengthy search process and when it was finally concluded he settled on Belizean Chief Justice Kenneth George for the post of Chancellor and the present acting Chancellor, Justice Yonette Cummings-Edwards for the post of Chief Justice. He notified Mr Jagdeo of this in late December, 2017. There were immediate questions about the choice of Justice Benjamin as he has been cited for a backlog of cases in Belize where decisions are still to be issued. Backlogged decisions and an overwhelmed court system are already serious problems here and surely the President must have been aware of these concerns while making his selections.
In February, 2018, Mr Jagdeo signalled his disapproval of the nominees. More than three months have since elapsed and President Granger is yet to take any further action. As the Executive President, Mr Granger is the one entrusted with initiating the process of consultation with the Opposition Leader and eventually making the appointments. He, more than anyone else therefore, must seek to expedite the process.
Following the rejection of his two nominees, President Granger said he would seek legal advice from his Attorney General. It is unclear what he had to be advised on as the constitutional provision is clear. The President’s ambivalence on this matter produced an unusual statement from the Guyana Bar Association on February 19, 2018 which apparently feared that unilateral appointments were about to be made. The Bar Association warned that: “Any action outside of Article 127 is unconstitutional, void, of no legal effect and would have embarrassing consequences.
“The current climate surrounding the offices of the Chancellor and Chief Justice is repugnant and shakes the public confidence in the legal system. It further unfairly undermines the dignity of the offices and office holders.
“In the circumstances we urge the Parties to work to break the impasse and arrive at a consensual resolution, discharging their duties to the nation and in keeping with the spirit and intent of Article 127 of the Constitution which was amended from its original form to foster collaboration.”
The impasse is yet to be broken and it is yet unclear what advice the President received even though he said in February after the rejection of his nominees: “Well, I have to be advised by my Minister of Legal Affairs and Attorney General. We cannot be without a Chancellor and Chief Justice and right now two persons are acting and I had hoped that we could have moved forward by having a substantive or a full time appointment agreed but this has not happened and the constitution requires me to await the approval of the Leader of the Opposition. [That] hasn’t come, so I would have to depend on legal advice and make sure that the courts continue to function”.
Earlier this month, the President surprised observers when he said that the ball was now in the court of the Opposition Leader even though the President had not corresponded with the Opposition Leader on the matter following the latter’s rejection of the candidatures of Justices Benjamin and Cummings-Edwards. The President gave the impression that he was expecting a further proposal from Mr Jagdeo.
The President said: “The ball is in the court of the Leader of the Opposition. I have made my proposals to him, he simply rejected them. He has not made any counterproposals so there is nothing to discuss”. It is unclear how the Opposition Leader could offer proposals without being asked to do so when the last engagement between the two leaders was for the purpose of Mr Jagdeo to respond to the President’s nominees.
Unsurprisingly, the Opposition Leader has since said that he won’t be offering a counterproposal and President Granger has now said that a new meeting will be held with the Opposition Leader at which point, presumably, other proposals would be discussed.
It is hoped that this meeting will be held as soon as possible and some compromise reached between the two leaders on the substantive appointments of a Chancellor and Chief Justice. The standing of the judiciary continues to be at risk from this prolonged failure by the executive branch of government to discharge its obligations. Clearly the constitutional provisions guiding these appointments will have to be reviewed and consideration taken of whether they also constitute a breach of the doctrine of the separation of powers.