Opposition wants court to declare President in dereliction of duty over top judicial appointments
A “gross dereliction and abdication of the duty” for which he has no ‘lawful excuse’ is how the main opposition APNU+AFC described what they say is President Irfaan Ali’s “failure” to consult with the Leader of the Opposition for agreement on the substantive appointments of a Chancellor and Chief Justice.
The coalition as previously hinted by Opposition Leader Aubrey Norton, has now officially filed an action asking the High Court to declare among other things, that Ali has in fact failed to consult with Norton for substantive officer holders for the top two judicial posts.
The action filed in the name of Opposition MP Vinceroy Jordan, advances that Ali’s failure to consult in accordance with Article 127 of the Constitution for ensuring the permanent appointments was a “gross dereliction and abdication of [his] duty.”
The action then goes on to argue that for as long as there remains no confirmed Chancellor and Chief Justice, the Court should declare Ali as being in continuous breach of his constitutional duty for which he has “no valid and constitutional excusable basis” for “failing” to consult.
Through his attorneys Roysdale Forde SC and Selwyn Pieters, 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.”
In a statement released to the press shortly after the action was made public yesterday afternoon Forde, who is also the Main Opposition’s shadow Attorney General lamented the 17 years Guyana has been without a substantive Chancellor and Chief Justice.
He said it is “public knowledge” that since Ali assumed the office of President on August 2nd, 2020, he has “refused” to initiate any consultative process with the Opposition Leader as is contemplated in Article 127.
Immediate
Forde then referenced a May 30th, 2022 letter which Norton had written government’s Parliamentary Affairs Minister Gail Teixeira on his agreement for the immediate confirmed appointments of Justices Yonette Cummings-Edwards and Roxane George who are currently acting as Chancellor and Chief Justice respectively.
Forde said that Teixeira’s statement that the President “is not prepared at this time to engage in consultations on this matter of supreme Constitutional importance comes over as a gross dereliction of his Constitutional duty and a clear indication that he is non responsive to the concerns of Civil Society and the people of Guyana.”
Forde then referenced a June 7th, 2022 letter again to Teixeira, reemphasizing what he described as Norton’s “unconditional agreement” for the respective substantive appointments of Justices Cummings-Edwards and George.
Forde said that the Coalition’s decision to move to the courts “was necessary because in these modern times, in the dynamic global political environment, democracy is not merely crude majority rule, as the Irfaan Ali-led government supposes. It is an environment that enables political systems that combines representative and responsible government with fundamental rights, the rule of law, fairness and justice, checks and balances, impartial administration, and means of participatory engagement and open public discussions.”
He further said “in encouraging and facilitating free and fair competition for public office, through elections, democracy presupposes differences of both interest and opinion, and therefore recognizes the legitimacy of political pluralism, including political opposition.”
“It must be said, that opposition in democracies is not merely tolerated but also valued as a vital element of the political system. Opposition parties perform crucial roles in bringing new issues to the policy agenda, shaping public debate, holding the government to account, informing and mobilizing voters, and providing voters with a choice of credible alternatives at elections,” Forde said in his statement.
Also, he said it “was important because the government is setting a bad example in the area of good governance” by “deliberately refusing to engage the opposition in an action [to] consult with the Leader of the Opposition.”
“How can the government talk about the rule of law and respect for the constitution when the President is blatantly disregarding the very constitution he swore to protect?” Forde questioned in his statement; while concluding, “Again, the action was important because a fair and independent judicial branch with the Chancellor and the Chief Justice properly appointed is a cornerstone of our democratic system of good government.”
The applicant Jordan, who is also Vice Chairman for the People’s National Congress Reform segment of the coalition has expressed the belief in his fixed date application (FDA) that the non-consulting by Ali as is constitutionally dictated, requires an immediate consideration of the legality of that decision.
In mid-May, the ruling People’s Progressive Party (PPP) fired back at APNU+AFC for accusing President Ali of consulting Norton in bad faith.
This was after Forde had accused the President of consulting in bad faith after he invited Norton to a meeting on May 13th “without furnishing him with the requisite information.”
The coalition’s statement had said that during the meeting, it was further agreed that the “consultations will be guided by the Constitution and the in-person consultations will resume on a date to be fixed, but within a week.”
Under the laws of this country, the President and the Opposition Leader must hold consultations, guided by the respective clauses, for the appointment of the Commissioner of Police, Chancellor of the Judiciary, and Chief Justice.
However, in a strongly-worded statement in response, the PPP took umbrage at the Opposition’s claims and accused it of being contradictory.
Addressing the long-overdue appointment of a substantive Chancellor and Chief Justice of Guyana, Ali, earlier this month, 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 respectively appointed acting Chancellor of the Judiciary and Chief Justice back in 2016 and 2017, 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.
Earlier this month, Stabroek News posed the question of the reluctance to further constitutionally mandated consultations with the Opposition Leader but the President initially brushed it aside.
However, he eventually said, “We have no issue appointing [a Chancellor and Chief Justice]. When the right time comes we will have the consultation on the appointment of Chancellor and Chief Justice. The [May 13, 2022] consultation was on the Commissions the President asked for consultations on.”
Head of the Presidential Press Unit, Suelle FindlayWilliams subsequently told Stabroek News that the President is expected to make a pronouncement “soon.”
There has since been no further word from the Office of the President regarding the appointments.
In April, civil society group Article 13 called for the immediate confirmation of Justices Cummings-Edwards and George and said 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.