Calling it a notable stain on Guyana’s judicial landscape, President of the Caribbean Court of Justice (CCJ), Justice Adrian Saunders, has called for the substantive appointment of a Chancellor and a Chief Justice to be made before this year ends.
“There is one significant blot on an otherwise impressive Guyanese legal and judicial landscape. For the country to have not appointed a Chancellor for 17 long years is very disappointing; likewise, to be without an appointed Chief Justice for several years. As the President of your final court, I believe I have a right and a duty publicly to express the view that Guyana should not let this year pass and not remedy this regrettable situation,” he said.
Justice Saunders was at the time delivering the keynote address to members of the legal fraternity during a Dinner hosted by the Guyana Bar Association (GBA) at the Marriott Hotel on Saturday evening.
The call by the judge will be a test for President Irfaan Ali and the presumed incoming Leader of the Opposition, Aubrey Norton. Since he took office in August of 2020, President Ali had steadfastly refused to hold constitutionally mandated consultations with the then Opposition Leader, Joseph Harmon on the ground that Harmon had not recognised the PPP/C government. Critics had pointed out that constitutional consultations are not predicated on recognition of the administration.
Justice Saunders’ call is an added voice to numerous similar appeals over the years, and comes on the heels of those made by the GBA, for confirmed appointments to the top two posts in the judiciary.
The CCJ President at the same time, also used the forum to call on the Executive to provide the Judiciary with what he said is its “reasonable needs,” regarding its role in the appointment of other judges.
Against this background he lamented that the three judges which the Court of Appeal has is inadequate and impedes the effective performance of that court.
“…On the other hand, the Executive needs to provide the judiciary with its reasonable needs. So, for example, three judges of the Court of Appeal is simply not enough for that court to perform effectively,” Justice Saunders asserted.
The call for more judges for the local courts is also not a new one.
The issue had been lamented by acting Chancellor Yonette Cummings-Edwards herself who has previously said that the 13 judges altogether currently presiding in the three High Courts across each of the three counties, were inadequate.
The appointment of more judges requires the Judicial Service Commission (JSC) to be in place and here again President Ali is required to undertake steps for the JSC to be recomposed.
Justice Saunders is not the first Judge of the Trinidad-based CCJ—Guyana’s final appellate court—to have called for substantive appointments to the country’s top two judicial posts.
Back in 2017, then president of the regional court, Sir Dennis Byron, at a similar event hosted by the GBA, had said it was unacceptable, that for more than a decade, Guyana had failed to appoint substantive office-holders.
He had warned 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,” Sir Dennis had said.
“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,” he had added at the time.
The judiciary has not had confirmed appointments to the top two posts for over 17 years.
The constitution requires that the President and the Leader of the Opposition have to agree to the appointments. There has been no agreement between the two office holders over the years and this has resulted in acting appointments.
Law week
During an address last Tuesday to mark observances of the GBA’s inaugural law week, President of the GBA, attorney Pauline Chase, told members of the legal fraternity, the diplomatic corps and other dignitaries that the non-confirming of the two top judicial posts and the absence of a JSC were all inimical to the Rule of Law.
She said it was an embarrassing state of affairs which affected the global Rule of Law Index for Guyana; even as she also bemoaned the absence of a JSC which is pivotal to the appointment of other judges.
She then called on all those to whom the duty falls, “to start the consultative process and put into motion, the machinery to address the correction” of what she described as “this unworkable and failed formula.”
Justice Cummings-Edwards and Justice Roxane George SC were respectively appointed acting Chancellor of the Judiciary and Chief Justice back in 2017—weeks after the retirement of then acting Chancellor Carl Singh, who was also never confirmed despite having served for 12 years.
Guyana has not had a substantive Chief Justice since Justice Desiree Bernard was elevated to the post of Chancellor in 2001 and no substantive Chancellor since Justice Bernard stepped down from the bench here in 2005.
For 12 years Justice Singh acted as Chancellor, while Justice Ian Chang acted as Chief Justice before Justice George was appointed to act in that capacity.
Meanwhile, the appointment of all other judges as well as magistrates cannot be done in the absence of the JSC which has not been reconstituted since 2017 which significantly hampers and further compounds the already existing issues posed by a shortage of judges.
In accordance with Article 128 (1) of the Constitution, judges, other than the Chancellor and the Chief Justice, are to be appointed by the President, who shall act in accordance with the advice of the Judicial Service Commission.
However, 20 months after the PPP/C took office and despite repeated assurances of its Government’s commitment to ensuring the reappointment of the JSC, there is yet to be any progress.
Back in November of last year, President Ali had again committed to his constitutional mandate in ensuring the necessary appointments to the Commission as well as the long overdue substantive appointments of Chancellor and Chief Justice.
