Former French President Nicolas Sarkozy was recently found guilty of corruption for trying to bribe a judge and influence-peddle in exchange for confidential information relating to an investigation into his 2007 campaign finances. He was sentenced to three years in prison. However, two years have been suspended, while the presiding judge agreed to allow him to be tagged with an electronic bracelet outside of prison for the remaining year. Mr. Sarkozy had 10 days to appeal the ruling. Last year, another world leader, Israeli Prime Minister, Benjamin Netanyahu, was indicted for fraud, breach of trust and accepting bribes in three separate cases. There have been calls for his resignation as a result of these charges as well his government’s response to the COVID-19 pandemic. Mr. Netanyahu had denied any wrongdoing. The case is still pending.
Last Wednesday, the Leader of the Opposition Joseph Harmon called on President Irfaan Ali to confirm Justices Yonette Cummings-Edwards and Roxane George-Wiltshire in the positions of Chancellor of the Judiciary and Chief Justice, respectively. He stated that their confirmation is necessary and ‘that is how they will be able to stand firm… Keeping people in acting positions is a way of controlling people’. The two judges have been acting in these positions since March 2017.
Since the retirement of Mde. Justice Desiree Bernard in 2005, Guyana has been without the services of a substantive Chancellor and a Chief Justice. Justice Carl Singh acted in the position of Chancellor for 12 years until his retirement in 2017. At one stage, he held the positions of both Chief Justice and Chancellor at the same time. When judicial review was sought in 2007 in relation to this matter, Justice Ramlal ruled that a person could not hold both positions at the same time; and the undue delay in appointing a substantive Chancellor made Justice Singh’s appointment to act as Chancellor unconstitutional. The late Justice Ian Chang also acted as Chief Justice for over ten years until his retirement in 2016. Both gentlemen would have retired in their substantive positions and therefore did not receive superannuation benefits commensurate with their acting positions, which is most unfortunate.
Constitutional provisions
Unlike other judges who are appointed by the President on the advice of the Judicial Service Commission, the Chancellor and the Chief Justice are appointed by the President after obtaining the agreement of the Leader of the Opposition, as required by Article 127(1) of the Constitution. However, in the case of an acting appointment in relation to these two positions, the President is required to have meaningful consultation with the Leader of the Opposition. Once that consultation takes place, the acting appointment is made until the position is filled via a substantive appointment, or until the substantive holder resumes his/her position, as the case may be.
In other words, while a substantive appointment cannot be made without the agreement of the Leader of the Opposition, for an acting appointment this is not mandatory once the President engages in consultation with the Leader of the Opposition. However, the words “meaningful consultation” would suggest at least the offer of a no objection by the Leader of the Opposition would not be inappropriate. In the case of the current holders – Acting Chancellor Justice Cummings-Edwards and Acting Chief Justice and George-Wiltshire – such consultations did take place prior to their appointment in March 2017.
We may also refer to Article 122A(1) which states that ‘all courts and all persons presiding over the courts shall exercise their functions independently of the control and direction of any person or authority; and shall be free and independent from political, executive and other form of direction and control’. This clearly implies that there should be no prolonged acting appointments in the Judiciary.
Undesirability of having prolonged acting appointments
From a good governance perspective, prolonged acting appointments are in general an undesirable practice that can adversely affect the ability of the officials involved in discharging their responsibilities impartially and in keeping with their professional training and experience. This is especially so, considering that they are dependent on those in authority for the continuation of their acting appointments and in the hope that they will be substantively appointed at some point in time.
I recall my own case in 1985 when I was appointed Chief Accountant at the Mahaica, Mahaicony, Abary-Agricultural Development Authority (MMA/ADA). Two weeks later, I was made to act as Manager (Finance) because the previous holder of the position had resigned. Within a month or two, I was substantively appointed to the position. The Chairman of the MMA-ADA Board was the late President Desmond Hoyte in his capacity as Prime Minister responsible for agriculture. Other distinguished members of the Board were: T. A. Earle – Commissioner of Lands and Surveys; the late Raymond Latchmansingh – Chief Hydraulics Officer; the late Clyde Roopchand – Chief Planning Officer) and John Browman – Permanent Secretary of the Ministry of Agriculture.
In 1987, I joined the Audit Office as Deputy Auditor General. Three years later when the late Auditor General Pat Farnum went on pre-retirement leave, I acted in the position for three months after which Mr. Hoyte in his capacity as President confirmed me in the position. The date was 31 December 1990. The other constitutional holders who were sworn in on the same day were the late Laurie Lewis as Commissioner of Police; and Brigadier Joe Singh as Chief of Staff of the Guyana Defence Force. Former President David Granger in his capacity as National Security Advisor was in attendance.
After I demitted office at the end of 2004, the current Auditor General acted for seven years. Had it not been for the fact that he would have reached retirement age of 55 in his substantive position, he might have continued to act in the position. The Auditor General had stated that he could continue in his acting appointment until he would have reached the age of 65 which is the retirement age of the Auditor General. When it was pointed this out this was not possible, former President Donald Ramotar hastily appointed him substantively to the position. This appeared to have been done to stave off the possibility of a request for judicial review in relation to the Auditor General’s continued acting appointment. There were also questions regarding his qualifications for this important constitutional position which is equated to that of the Chief Justice in terms of emoluments and other conditions of service. Unlike the case of judges, the Constitution does not provide for qualification requirements for the Auditor General. The 2004 draft Audit Act had included such requirements but regrettably, for whatever reason, they were not reflected in the final legislation.
The point we wish to make here is that an acting appointment should not exceed six months which is enough time to assess the performance of the individual and to decide whether he/she should be confirmed in the position. This was the institutionalized practice at the time. Unfortunately, in later years, this practice was in some instances set aside perhaps out of a desire to exercise control and to get officials involved to ‘toe the line’. Prof. Arif Bulkan asserted that acting appointments for protracted periods are generally ‘inimical to fearless, independent performance’ and serve to place the official ‘in a perpetual state of probation, and demands strength of character in order to rule fearlessly’.
Concerns raised in relation to prolonged acting appointments
In response to Mr. Harmon’s statement, the Guyana Bar Association (GBA) stated that the continued delay in the substantive appointment of the Chancellor and the Chief Justice is evidence of the need for a new selection process that would remove politics and politicians from the process. The GBA asserted that it is painful for the Judiciary to be used as political games contrary to the doctrine of separation of powers; and acting positions are ‘inimical to the functioning of the justice system’.
At the 37th Annual Bar Dinner held on November 2017, President of the Caribbean Court of Justice (CCJ), Justice Dennis Byron expressed disappointment that successive Presidents and Leaders of the Opposition have been unable to agree on the substantive appointment of a Chancellor which he considered a most unfortunate state of affairs. Justice Byron further stated that prolonged acting appointments pose a genuine risk to the promise to citizens of an independent and impartial judiciary:
With the passage of 12 years the undesirability of further delay could no longer be controversial. This is a very serious issue because attacking the problems of delay and all other issues that need reform requires strong leadership. It is simply obvious that a leader who is not appointed is under a disadvantage, and criticisms of the sector need to be received with the knowledge of the impediment that is placed on the leadership of the institution, an impediment which the Constitution specifically frowns on.
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. Anything otherwise is, to my mind, a violation of the spirit and intent of the Constitution
The current President of the CCJ, Justice Adrian Saunders, added his voice by stating the failure to make substantive judicial appointments is a significant strain on the rule of law. And at its sixth biennial conference held in Belize in October – November 2019, the Caribbean Association of Judicial Officers commented that the failure to confirm the candidates for the two top judicial roles goes against the grain of establishing public trust and confidence in the Court system.
Suggestion for unlocking the gridlock
Since 2005, at least two attempts had been made to fill the positions of Chancellor and Chief Justice. However, in each case the nominees did not find favour with the then Leaders of the Opposition. Now that the current Leader has indicated his support for Justices Cummings-Edwards and George-Wiltshire, an opportunity has now presented itself to resolve the 16-year old gridlock.
There can be no doubt that these two judges have performed with distinction in upholding the rule of law, especially during the difficult period from the 21 December 2018 vote of no confidence in the Government to the swearing of the new President on 2 August 2020. It was during this period that several judicial reviews were sought challenging the validity of the no confidence vote as well as the constitutionality and legality the recount Order; and to block GECOM from declaring the results based on the recount.
In his Conversation Tree column of 23 December 2017, former Speaker of the National Assembly had the following to say about these two distinguished judges:
I can say with certainty that the anticipated performances of the Chancellor (ag) and Chief Justice (ag) have exceeded expectations amidst enormous challenges, which had commenced under the chancellorship of Carl Singh, not least among which are the implementation of the new Civil Procedure Rules, the establishment of courts with new jurisdictions for family and sexual offences, the appointment of additional judges and a building programme to house courts, magistrates and judges. I believe that this opinion is shared by the legal profession.
We urge the President and the Leader of the Opposition to meet at the earliest opportunity and agree to the substantive appointment of Justices Cummings-Edwards and George-Wiltshire to the positions of Chancellor and Chief Justice, respectively. These two judges deserve no less.
