“Our approach in this Government is to take our country forward in keeping with the Constitutional requirement and we will not have those requirements held up, or held hostage by political object,” said President Ali at the end of May. Taking the country forward, it seems, means doing without a substantive Chancellor or a Chief Justice, since the head of state has shown no disposition to expedite these appointments. So much for the rule of law and the PPP/C’s much touted democracy.
Everyone knows the reason why these two senior posts in the judiciary cannot be filled – for seventeen years in the case of the Chancellor. It has nothing to do with the judicial system and everything to do with our rancid politics. The Constitution requires that there be “agreement” between the President and the Leader of the Opposition on the two appointments, and for years different Presidents and Opposition Leaders have not been able to agree.
It has made little difference that so many eminent personalities and institutions have exhorted the powers-that-be to bring an end to this anomalous situation. All our parties have displayed an unrivalled capacity to disregard anyone of whatever status offering a common-sense opinion, especially if it happens to be right. They have included members of the CCJ, the Guyana Bar Association, the Women Lawyers’ Association as well as others.
One of the more recent calls came from Justice Saunders of the CCJ who in an address to the local Bar Association in April said: “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.”
Given what was in their manifesto everyone had hoped that the ‘regrettable situation’ would have been rectified after the coalition government came into office in 2015. They were to be disappointed. APNU+AFC President David Granger insisted on a search process not required by the Constitution, and eventually selected Guyana-born Chief Justice of Belize Kenneth Benjamin as Chancellor and Justice Yonette Cummings-Edwards as Chief Justice as his nominees. This was despite the fact that it was unlikely Justice Benjamin, with a backlog of decisions to his credit, would have been able to deliver all 32 of his delayed judgments before his departure. This could have resulted in the Belize Bar Association making good on its threat to file proceedings to have him removed from office for misconduct.
Not surprisingly, then Opposition Leader Bharrat Jagdeo would not agree to the names, with Mr Granger then claiming bizarrely it was for Mr Jagdeo to make the next move. Clearly the onus was not on him, so there the whole process stalled. Hope was renewed in 2020 when President Ali acceded to office with his glib talk of unity and ‘One Guyana’. Whatever his notion of unity, it did not include the opposition, and he refused to talk to Leader of the Opposition Joe Harmon until the latter recognised the government as legitimate. Shamed eventually into agreeing to discharge his constitutional duty with regard to appointments, he was given another respite on account of disarray in the PNCR following Mr Harmon’s resignation.
Following the election of Mr Aubrey Norton as Leader of the Opposition this year, we have now arrived at the latest stage of operations. As was reported, the President and Opposition Leader did meet to discuss constitutional and statutory commission appointments, and were due to meet again “within a week”, but when Mr Norton was finally contacted to attend a meeting on May 30 long after the promised time slot had passed, he did not attend he said, owing to other commitments and the short notice. The head of state then went ahead and unilaterally appointed the Integrity Commission and the Police Service Commission.
Mr Norton’s handling of this situation did not suggest great deftness in terms of political manoeuvres, but it was his activities in the social sphere which did him the most damage where his personal reputation was concerned. In exploits which would have provided quality material for even a mediocre satirist, and which must have made the more experienced members of his party nervous, the Opposition Leader involved himself in a misguided confrontation with Vice-President Jagdeo, and then a stubborn refusal to shake hands with President Ali. Both these incidents took place at diplomatic functions.
If this behaviour did not speak to his leadership qualities, he did at least get one thing very right. And it is a big thing. It has emerged that in a letter of May 30 to Minister of Parliamentary Affairs and Governance Gail Teixeira, which has been made public, Mr Norton said he was prepared to agree to the immediate appointment of Justices Cummings-Edwards as Chancellor and George-Wiltshire as Chief Justice. As was observed in our report on the matter, that puts the government on the spot.
They have clearly been trying to evade bringing Mr Norton in for discussions on the most important of all the constitutional appointments, and that avoidance has been made doubly apparent by what Ms Teixeira wrote at an earlier stage. The Opposition Leader had also written her the day before he met the President on the commission appointments saying,
“…it is disappointing that your [Ms Teixeira’s] letter of the 11th day of May 2022, does not inform of the President’s intention to engage in the consultations required by the constitution in respect of the offices of the Chancellor and Chief Justice of Guyana.”
In her very best schoolmarmish tone Ms Teixeira told him that she had already made it “abundantly clear” in previous correspondence that these appointments were not part of the consultations and that constitutionally speaking it was the President who initiated “the relevant processes”. She went on to lecture him that “you have hopelessly misconstrued your role in relation to appointments to these important constitutional offices.”
This is extraordinary. Justice Saunders of the CCJ can express his opinion on the matter; Justice Bernard, the last substantive Chancellor can express her concern; President of the Bar Association Pauline Chase can call for a correction, but the Leader of the Opposition who represents nearly half the electorate is ‘hopelessly misconstruing his role’ if he speaks of the need for discussion on the two above appointments?
The only conclusion which can be come to is that the government does not want to appoint either Justice Cummings-Edwards or Roxanne George-Wiltshire or both, and is therefore impeding the process rather than calling in the Opposition Leader for discussions. It presumably prefers things as they are, because where acting appointments are concerned it is the one in control, not the Judicial Service Commission, which, it might be added, has also not been established yet.
Ms Chase in April said that the aim was to promote the importance of the rule of law in society. Not for the government it seems. They open themselves to being accused of seeking a pliant judiciary. The Leader of the Opposition has done society a favour by forcing them into a position where they will have to respond on the matter of the two critical appointments at the apex of the judiciary.
In a statement on his Facebook Page the President said, “In my opinion the Leader of the Opposition … has demonstrated his immaturity in dealing with important national issues.”
It is a moot point as to where on this particular issue the immaturity lies.
