…CCJ President bats for substantive appointment of chancellor, chief justice
…hints at judicial intervention to settle statutory lacuna

PRESIDENT of the Caribbean Court of Justice (CCJ) Sir Dennis Byron, has called for the swift appointment of a substantive chancellor of the judiciary and chief justice and also hinted that a judicial intervention might be needed to address a regulatory or statutory lacuna if it does indeed exist.

Attorney General Basil Williams only recently warned in the ‘PPP GECOM court challenge’ that the judicial arm should not encroach on the principles of separation of powers and the spirit and intendment of the constitution. He argued that the immunities of the President are enshrined in the constitution, by virtue of Article 182(1). “It directs that His Excellency the President shall not be personally answerable to any Court for the performance of the functions of his or her own office or for any act done in the performance of those functions and no proceedings, whether criminal or civil, shall be instituted against him or her in his or her personal capacity in respect thereof, either during his or her term of office or thereafter.”

Guyana has not had a substantive chancellor of the judiciary since 2005, mainly due to the fact that the opposition and governing parties have not agreed on candidates for the post. In his address at the 37th Annual Bar Dinner held at the Pegasus Hotel, Georgetown, the CCJ President made it clear that it was not the intention of the local constitution to have the two most senior judicial officials act in the post for a prolonged period. Sir Byron noted too that no substantive chancellor has been appointed since Justice Desiree Bernard, Guyana’s first female chancellor, demitted office and was appointed as the first female judge of the CCJ. Former acting Chancellor, Justice Carl Singh, acted in that post from 2005 until his retirement earlier this year.

Meanwhile, he stressed the need for the substantive appointments in the guarantee of judicial independence to citizens. “This situation has moved well beyond what ought to be acceptable in a modern democracy where respect for the rule of law is maintained. The constitution envisages the judiciary of Guyana to be headed by officials who are substantively appointed and enjoy all the legal and institutional mechanisms to secure their tenure. Anything otherwise is, to my mind, a violation of the spirit and intent of the constitution.”

Article 127 (1) of the constitution speaks to the appointment of the chancellor and chief justice and says both the chancellor and chief justice shall be appointed by the President, acting after obtaining the agreement of the leader of the opposition. The afore-mentioned provision was a key aspect of the 2001 amendment to the instrument whereas under the 1980 constitution, the appointments of the chancellor and chief justice could be made by the President, following consultations with the minority leader.

Pres Granger taking action
Back in March, President David Granger administered the Oath of Office to Justices Yonette Cummings-Edwards and Roxanne George-Wiltshire, who were sworn in to perform the functions of acting chancellor of the judiciary and acting chief justice, respectively. Last month, the President told reporters that he is awaiting a response from the nominee identified for the substantive post of chancellor of the judiciary. That person has since been contacted and the President is awaiting a response from the nominee.

“He has been written to and I am awaiting a response,” he added. The nominee was selected and recommended to the President by a panel comprising former Justice of Appeal, Claudette Singh, Justice James Patterson, and Professor Harold Lutchman. Once the nominee responds, President Granger said he will consult with the Leader of the Opposition Bharrat Jagdeo in accordance with the constitution. The situation is the same for the nominee for the substantive post of chief justice.

But on Saturday, Justice Byron reminded that the office of Chancellor of the Judiciary became vacant when Justice Desiree Bernard joined the bench of the CCJ. “So, it is with some disappointment that I acknowledge that since that time, successive Presidents and leaders of the opposition have been unable to agree on the substantive appointment of a Chancellor. This has brought us to the situation today where the number one and number two officials of the Guyana judiciary have not been substantively appointed. This is a most unfortunate state of affairs,” the CCJ President stated.

Referencing Article 127 (2), Justice Byron noted the temporary nature of the appointments and pointed to the language of the said Article suggests that any such appointment is a short-term one. The use of the word “shall” in Article 127(1) imposes a mandatory obligation upon both the President and the leader of the opposition to come to an agreement on the persons to be appointed as chancellor and chief justice. “Despite the subjective component of reaching agreement, the constitution could not have intended the decade-long paralysis that has resulted from the failure to agree,” he opined while noting “that the constitution intended that the identified officials would exercise high standards of good faith and reasonableness because failure to agree is not an acceptable option in the interpretation of that constitutional provision.”

“Of course, I do acknowledge that there are practical problems in identifying precisely where the liability lies in the failure to come to an agreement. It seems entirely plausible for such liability to lie with either the President or leader of the opposition, or both, in accordance with the mandate of section 127(1) and depending on the process that has been followed to reach agreement between the two sides,” said the CCJ President.

Judicial intervention
He believes this gives rise to the question of whether an appropriate statutory or regulatory framework to establish agreement is in existence. If the answer to this is in the affirmative, he submitted that that may be a basis for judicial intervention, and “if it is in the negative, now would be the opportune time to address such a regulatory or statutory lacuna if it does indeed exist, and that too may be a basis for judicial intervention.”

Stressing the need for independence of the judiciary as is stipulated in Article 122A (1) of the constitution, Justice Byron said the constitutional provision does not contemplate and or condone in any way prolonged acting services of the country’s number one and number two judicial officers. “Such a situation poses a genuine “risk” to the constitutional promise to every citizen of an independent and impartial judiciary,” he warned noting that the constitution is the supreme law of the land and no authority is above it.

The CCJ President reminded that the court is duty-bound to interpret and ensure that the provisions of the constitution are applied, while stressing that the delay in complying with Article 127 (1) of the constitution “has long reached a level of justiciability and the most appropriate authority for resolving this situation is the court system.” He noted too that the said Article is mandatory and not discretionary and any failure to fulfil the obligation should be seen as a breach of the constitution.

Additionally, the learned judge reminded that the interpretation of Article 127 was the subject of litigation 10 years ago in the case of Committee for the Defence of the Constitution v AG. In that case, the court was confronted with a challenge to Justice Carl Singh performing the functions of both chancellor and chief justice. The court ultimately determined that it was a breach of the constitution for the functions of both offices to be performed simultaneously.

“What is interesting about this case is that while the court appears to have acknowledged that the failure to appoint a substantive chancellor for a prolonged period violated Article 122A (1) of the constitution, it seems to have viewed itself as constrained by Article 127 not specifying any time limit for the period of an acting appointment or within which agreement must be reached.”

“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. It is simply obvious that a leader who is not appointed is under a disadvantage, and criticisms of the sector,” Justice Byron declared.