GOVERNMENT has already publicly indicated its readiness to move ahead with the process of appointing a substantive Chief Justice and a Chancellor of the Judiciary. However, this will have to commence once the constitutional commissions are effectively set up.

This was the main thrust of the argument presented by the Attorney General and Minister of Legal Affairs, Anil Nandlall, S.C., on behalf of the State in a civil case which seeks to compel the President to make substantive appointment to the two top judicial posts.

The case is being heard virtually before High Court Judge, Damone Younge, who is expected to hand down her ruling on March 7, 2023.

The legal proceedings were filed in the name of APNU+AFC parliamentarian Vinceroy Jordan, who wants the court to direct the President to forthwith initiate the process contemplated by Article 127 of the Constitution to make the appointments.

According to the provision made in Article 127 (1) of the Constitution: “The Chancellor and the Chief Justice shall each be appointed by the President, acting after obtaining the agreement of the Leader of the Opposition.”

There has been a more than 20-year impasse on judicial appointments with the last substantive Chancellor being Justice Desiree Bernard and Justice Carl Singh, the last Chief Justice.

The current Chancellor, Yonette Cummings-Edwards and Chief Justice Roxane George have both been acting in their respective positions for a number of years.

The opposition complained that President, Dr Irfaan Ali, assumed office on August 2, 2020, and from then to present, the Head of State has failed to initiate any process contemplated by Article 127 of the Constitution to make permanent appointments to the two offices.

In his submissions on Wednesday, Nandlall told the court that President Ali had long indicated that he would deal with the substantive appointments of the country’s top two judicial posts “when the time is right”, and after the various service commissions are established such as the Judicial Service Commission, Public Service Commission, and Police Service Commission among others which, he said is “crucial to national security.”

“A president must be able to say, reasonably, that I will prioritise the exercise of my constitutional duties this week. Let me deal with all the commissions first, let me deal with the commissioner of the police force because these are matters of equally high priority but they are vacant… As opposed to the Office of Chancellor and Chief Justice that are occupied and persons are functioning in them,” he said.

The Attorney-General went on to explain that there is no timeframe by which the President is bound for the appointment, however, the only fundamental conditionality is that he cannot exercise that power without an agreement from the opposition.

“Your Honor, I reiterate that the President continues to say that he will act, as soon as is reasonably practicable. [He] will engage the leader of the opposition, but we have to deal with the other issues in relation to which the engagements have begun and have not yet been completed,” he added.

In his comprehensive submission, the AG said that attorney Roysdale Forde, who is representing the opposition, is basically asking the court to do something that had never been done; that is the Head of State of a country being directed by a judge to perform an act.

“He said that I didn’t use any authority to support what I’m advocating and that’s true because none exists,” he said as he explained that the President has immunity and is not answerable to any court.

In closing, the AG asked the court to find that having regard to the peculiar facts and circumstances of this case, a period of two months, or thereabouts or a few months of noncompliance with a constitution – the constitutional provision that has been in breach for 20 years- it would be unfair and unreasonable in the circumstances to hold the President in violation of the Constitution.

He added that this is the position being taken by the opposition and is being used as a political tool to say that the President is “arrogant” and wants to dictate whether he will comply with the Constitution. However, the AG noted that these claims are meritless.

Meanwhile, Forde contended that there is nothing in the Constitution to indicate that the appointments of the judicial officers cannot be done on parallel tracks with the constitutional commissions.

He submitted there is a clear case of the delay by the President of his “refusal” to initiate the process required by Article 127 of the Constitution.

“There has been no reasonable excuse offered upon which the court can act,” he said.