With both written and oral arguments now submitted, Justice Damone Younge has fixed March 7th for her ruling in the case over the non-appointment of a substantive Chancellor of the Judiciary and Chief Justice.
The action filed by the main opposition APNU+AFC in the name of MP Vinceroy Jordan, is contending that President Irfaan Ali is in “gross dereliction and abdication of his duty” and has no “lawful excuse” for not consulting with Opposition Leader Aubrey Norton, on the substantive appointments of a Chancellor and Chief Justice.
The coalition wants the Court to declare that Ali has in fact failed to consult with Norton for substantive office holders for the top two judicial posts.
In submissions yesterday, Attorney General Anil Nandlall, who is listed as respondent in the case, argued that while the President is bound by the constitution to make the appointment of Chancellor and Chief Justice subsequent to consultation with the Opposition Leader, he is not bound to do so in a specified timeframe.
“The President is cognizant of his responsibilities, and has been working toward making constitutional appointments, including those which require the agreement of the Leader of the Opposition,” he contended.
He argued too that the court should exercise the doctrine of ‘judicial restraint’ and allow for the constitutional actors, that is, the President and the Leader of the Opposition, to perform their duties. In support of his argument, he made reference to the ruling of the Caribbean Court of Justice in Christopher Ram v. The Attorney General [2019].
“…It would not therefore be right for the Court, by the issuance of coercive orders or detailed directives, to presume to instruct these bodies on how they must act and thereby pre-empt the performance by them of their constitutional responsibilities. It is not, for example, the role of the Court… to lay down timelines and deadlines that, in principle, are the preserve of political actors guided by constitutional imperatives. The Court must assume that these bodies and personages will exercise their responsibilities with integrity and in keeping with the unambiguous provisions of the Constitution,” Nandlall said in his submission.
He argued that this is an appropriate case for the judicial restraint doctrine to be invoked.
Rebutting, Roysdale Forde SC, who represents Jordan, said that the argument put forward by the Attorney General has no basis. He stated that the constitution does not prevent the president from simultaneously consulting to fill the vacancies for the necessary commissions.
He argued that the President’s failure to make the appointments illustrates that he is prepared to do so when he sees fit and not what is in the best interest of the nation.
Nandlall, during his arguments, referenced the non-functioning opposition during January to April 2022. He also pointed out that former Opposition Leader, Joseph Harmon was not open to meeting with President Irfaan Ali.
Jordan (the Applicant) wants the Court to grant an order directing the President, through his Attorney General, “to be compelled to forthwith initiate the consultation process envisioned by Article 127 of the Constitution.”
The Section provides, “The Chancellor and the Chief Justice shall each be appointed by the President, acting after obtaining the agreement of the Leader of the Opposition.”
Forde, who is also the main opposition’s shadow Attorney General, has previously lamented the 17 years Guyana has been without a substantive Chancellor and Chief Justice.
He has said it is “public knowledge” that since Ali assumed the office of President on August 2, 2020, he has “refused” to initiate any consultative process with the Opposition Leader as is contemplated in Article 127.
Addressing the long-overdue appointment of a substantive Chancellor and Chief Justice of Guyana, Ali in early June had said that while he had no issue appointing the two top judicial officers, he would do so when the “right time comes.”
Guyana has not had a confirmed Chancellor and Chief Justice for the past 17 years. Justices Cummings-Edwards and George SC, were appointed acting Chancellor of the Judiciary and Chief Justice back in 2016 and 2017, respectively, following the retirement of then acting Chancellor Carl Singh, who was also never confirmed despite having served for 12 years.
There have been calls from several sections of society for the substantive appointments of Chancellor and Chief Justice but successive governments have failed to do so.
In April, civil society group, Article 13, called for the immediate confirmation of justices Cummings-Edwards and George and stated that the onus is on President Ali to initiate the process.
Prior to Article 13’s statement, the current president of the CCJ, Justice Adrian Saunders, called the failure to appoint the top judicial officers, a “notable stain on Guyana’s judicial landscape.”
In addition to calling for the appointment of a Chancellor and Chief Justice, the Guyana Bar Association has also called for a change in the formula for the appointment, noting that the current one is clearly not working.
