President of the Caribbean Guyana Institute for Democracy (CGID) Rickford Burke says the Guyana Bar Association (GBA) has no credibility and poured cold water on a statement the body issued on Monday regarding the appointment of a substantive chancellor of the judiciary and chief justice.

The GBA on Monday called on President David Granger and Opposition Leader Bharrat Jagdeo to work together to appoint a substantive Chancellor and Chief Justice. In a statement to the media, the Bar Association said the “current climate surrounding the offices of the Chancellor and Chief Justice is repugnant and shakes the public confidence in the legal system.”

“Any action outside of the said Article 127 is unconstitutional, void, of no legal effect and would have embarrassing consequences,” the association said. However, in a strongly worded statement Burke described the GBA statement as inexplicable. He noted that the association’s statement speculated inter alia, that “Any action outside of the said Article 127 is unconstitutional, void, of no legal effect and would have embarrassing consequences.”

Burke noted that Article 127 (1) of the constitution mandates that “The Chancellor and the Chief Justice shall be appointed by the President acting after obtaining the agreement of the Leader of the Opposition. Article 127 (2) further mandates that “If the office of Chancellor or Chief Justice is vacant or if the person holding the office of Chancellor is performing the functions of the office of President or is for any other reason unable to perform the functions of his office, or if the person holding the office of Chief Justice is for any reason unable to perform the functions of his office, then, until a person has been appointed to and has assumed the functions of such office or until the person holding such office has resumed those functions, as the case may be, those functions shall be performed by such other of the Judges as shall be appointed by the President after meaningful consultation with the Leader of the Opposition.”

He explained that on January 3, 2018, President David Granger nominated current Chief Justice of Belize, Hon. Kenneth Benjamin, to be Chancellor, and Acting Chancellor of Guyana, Hon. Yonette Cummings-Edwards, to be Chief Justice. The President, in accordance with Article 127, sought the agreement of Opposition Leader Bharrat Jagdeo. On February 7, 2018 Mr. Jagdeo wrote the President refusing to grant consent. President Granger subsequently said he will be guided by advice from his legal advisers on his constitutional options. He affirmed a desire to appoint substantive office holders as the country cannot be without a Chancellor and Chief Justice. Since 2005, the nation has been without a substantive Chancellor and Chief Justice. Unless the GBA is clairvoyant, these comments by the President constitute the established record and the only basis upon which the GAB can objectively comment or premise legal opinion.

“The issuance of a highly charged, political statement chastising the Head of State on the basis of rumor, speculation and political gossip, evinces political bias. It is incontrovertible evidence that the GBA has wittingly enmeshed itself into partisan politics as an advocate and ill-advised surrogate for the Opposition Leader. In so doing, it has, with prejudice, undermined its ability as a credible and objective amicus, civil society intermediary. This is antithetical to the fundamental tenets of legal ethics and justice for which the association and its members should be obligatory advocates at the bar; i.e conclusion based on confinement to principles of proof of fact, evidence or findings of fact; not speculation and hearsay. The relinquishment of the aforementioned principles caused the Association’s statement to be without merit,” Burke charged.

Burke said if the GBA has a genuine concern about the President’s fidelity to the constitution it should have met with or written the President and Opposition Leader and conveyed its opinion on Article 127, as well as the corrosive impact of the political “Acting” game on the judiciary. “Failing which it should have waited until the President acted. At that point, if it deemed such action to be unconstitutional or ultra vires the constitution; it can raise hell and sue the President to overturn his action.

But to speculate on, or proffer a legal opinion on the President’s contemplated action, based on the GBA’s presumption, is malicious, unprofessional and repugnant to the standards of the Bar; including fair and impartial judgement and equal justice and protection under law. Our society should therefore reject reckless political speculations from the law body that regulates the conduct and ethics of the legal fraternity. It is corrosive to our polity.”

Moreover, Burke said it is reassuring that the GBA has suddenly found its voice. Where was the Bar Association when Mr. Jagdeo, as President, and his government ostensibly abused the constitution, unlawfully conflated the positions of Chancellor and Chief Justice and illegally appointed Mr. Carl Singh to both positions? Where was the Bar Association when this cabal turned the government into a criminal enterprise, engaged in massive corruption, allegedly facilitated the narcotics trade and was complicit with torture, extrajudicial and death squad killings, jettisoned and politicized the judiciary and Supreme court registry, engineered inordinate delays and backlogs in court cases, and generally perverted the course of justice in Guyana? I submit that the GBA’s silence then and sudden voice now demonstrates a worrying pattern. The GBA has eroded its own credibility and turned itself into a joke.

Emasculation
Attorney General, Basil Williams had made similar observations recently when he responded to claims that the government is trying to interfere with the work of the judiciary. Williams argued that it was under the tenure of Bharrat Jagdeo that the judiciary was emasculated. “Our judiciary you’d recall, the powers were removed from the Chief Justice’s Office and reposed in the Office of the Chancellor and then what they did, whenever there was a meeting of the Opposition Leader, Jagdeo always asserted Carl Singh to remain.” Williams said it is important that there is a dichotomy between the Chief Justice’s Office and the Chancellor’s functions in terms of sharing the work of the judiciary ,“so that one person alone would not be in charge of the entire judiciary.”

The AG argued that the lack of separation between the two offices has affected the country significantly, while noting that a situation was created whereby the Chancellor appointed those who should be magistrates, judges and those who sit on the Court of Appeal, an unhealthy situation occurred. “How could that be healthy?” questioned the Attorney General. “At the end of the day, it means he would be sitting on appeals of decisions of the people he actually handpicked to sit on cases; that couldn’t be well for the administration of justice,” Williams, a Senior Counsel, added.

Williams noted that there were several misgivings under the former President’s watch and reminded that the constitution is premised on the separation of powers: the Judiciary, Executive and Legislature. “They all have independent roles and no one should tread on the work of the other. What he had under Jagdeo–we had a marauding of the judiciary, so the complaint is not that there is interference with the judiciary, the judiciary under Jagdeo is interfering in the work of the executive and that is happening till now.”