The AG and appointment of judicial officers
According to the DPI Attorney General Anil Nandlall is of the view that the mechanisms currently in place to appoint a Chancellor and Chief Justice could be reviewed during the course of the upcoming countrywide consultation for constitutional reform. The National Assembly is to meet on November 7 following its recess, and among the eight bills down for debate is one establishing a Constitution Reform Commission. Once it has passed, the process of consulting about reforms, securing a political consensus on those reforms and incorporating them into the law of the land is likely to be a prolonged affair.
That of all the reforms the government seeks, the Attorney General should have selected to highlight one related to the appointment of our two highest judicial officers is significant. President Irfaan Ali is the official who is constitutionally required to make these appointments after securing the agreement of the Leader of the Opposition. After more than two years in office he has made no attempt to fulfil this requirement under the Constitution and has pirouetted around questions on the subject put to him by the media.
He has hinted that these appointments are linked to the establishment of the Judicial Service Commission, which has also not yet been set up, but they are not, as Mr Ralph Ramkarran pointed out to him in a column in this newspaper. In an interview with Stabroek News last month the President had said, “So let me say very clearly, at the appropriate time, the matter of the Chancellor and the Chief Justice will be brought on the agenda.”
When, the public wants to know, will the appropriate time be? After the Constitution Reform process has been completed? If that is what the government has in mind, leaving aside the matter of the totally indefensible delay, it has no guarantee that the opposition would accede to any change in the current rules. As things stand, it would require their cooperation to secure the two-thirds majority necessary to amend this part of the Constitution.
But then perhaps that would not matter to the ruling party since in any case it likes things as they are. In the interview referred to above the President said: You have a Chancellor. You have someone performing the duties of a Chancellor right now. How do you think I was sworn in? Who swore the President in? It is the Chancellor, the Acting Chancellor who swore [in the President]. So I don’t know, it’s not like the country’s without a Chancellor”. This is either an example of unbelievable naivety about what is involved in the rule of law, or it implies a level of political chicanery unacceptable in a serious democracy.
Guyana has not had a confirmed Chancellor for the past 17 years. Justices Cummings-Edwards and Roxane George were appointed acting Chancellor of the Judiciary and Chief Justice 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. The last substantive Chancellor this country had was Justice Desiree Bernard, who left in 2005 after being promoted to the Caribbean Court of Justice.
If most of the earlier governments could not obtain the agreement of the opposition for their choices, the situation with the current President is that he has never even attempted to achieve accord. This is despite the fact that Opposition Leader Aubrey Norton wrote to Minister of Parliamentary Affairs and Governance Gail Teixeira in May this year indicating he would be prepared to confirm the two acting justices as Chancellor and Chief Justice. This clearly caught the President off-guard, because he said in response that “the opposition wants to be selective” about giving its support, but that he will decide when the appointments will be made. If he doesn’t want to confirm either one or both of the current justices, under the Constitution he should call in the Opposition Leader to put forward his proposals which they then could discuss. That has not been done.
Should we now believe that this decision will only be taken after reform of the constitution in relation to judicial appointments has been achieved? Certainly Mr Nandlall went to some lengths to argue that the current system is not working, although as already noted it is not working this time around because it hasn’t been tried yet. The DPI said that the AG made his remarks when addressing a virtual panel on ‘Constitutional Reform and the Republic: The Judicial Selection Process in the Context of Administration of Justice and Democratic Strengthening.’ There is no evidence that Mr Nandlall as the government’s senior law officer has stressed to the President the necessity of complying with the Constitution, and that this cannot be done on whim. As Mr Ramkarran pointed out, there is an urgency: “The positions of Chancellor and Chief Justice have been vacant for more than seventeen years. The lack of alacrity or sense of urgency to fill constitutionally mandated posts which have been vacant for so long cannot withstand constitutional scrutiny.”
Mr Nandlall was quoted as saying in relation to the reform process that, “Hopefully one of the provisions, which will be microscopically examined in this process, is the very article that speaks to the appointment of a Chancellor and a Chief Justice [and] hopefully we will get recommendations emanating out of the process which will find political consensus …” Why does he think that if that happens there will be democratic strengthening, but that defying the Constitution, as the President is doing at present, is
not undemocratic? It might be observed too that it would probably be easier to obtain a change in the relevant constitutional provisions if a Chancellor and Chief Justice had been substantively appointed before those discussions took place.
So exactly why is the President refusing to follow the Constitution in this instance? Is it because he does not want either of the justices to be confirmed because they were appointed by former President David Granger? Or is it that he doesn’t want one of them confirmed because he does not feel comfortable about the decisions they might make? Either way, there is still no excuse for not calling in the Leader of the Opposition. Acting appointments are made by the President alone but are intended as a temporary arrangement; however they give a government through the head of state a power over the most senior officers in the justice system he would not have were they substantively in post.
And that is the bottom line of our problem. Judicial appointments are seen by both sides in a political light; an independent judiciary is not something our politicians have really come to terms with, the arguable exception being Desmond Hoyte when he was in office. What is difficult to comprehend is why this attitude persists even although the final court of resort in this country is the CCJ, which is certainly an independent body. Any local judgement favourable or unfavourable to a given political party can be appealed to the CCJ, and in fact has been, as was demonstrated in recent times. So if, for the sake of argument, a government had a totally compliant judiciary, it would not help it if judgments in its favour were consistently overturned at the highest level; in fact it might bring the judiciary here into disrepute.
There is, however, a development in the story in so far as APNU+AFC filed an action earlier this year contending that the President is in “gross dereliction and abdication of the duty” and has no “lawful excuse” for not consulting with the Opposition Leader on the substantive appointments of a Chancellor and Chief Justice. The matter is to be heard on November 23. The applicant, Mr Vinceroy Jordan, MP, has asked the Court to grant an order directing the President through the AG “to be compelled to forthwith initiate the consultation process envisioned by Article 127 of the Constitution.”
The President has clung to the assertion that he would decide when the “right time” was to make the appointments. It now seems as if a court will decide on the matter of the “right time”.