GUYANA | Supreme Court to hear case regarding Appointment of Chancellor and Chief Justice on November 23

GEORGETOWN, Guyana -November 1 2022 - The Supreme Court on the 23rd of November, is scheduled to begin examination of a suit brought by Opposition MP Vinceroy Jordan, against the Attorney General of Guyana, for the failure of President Irfaan Ali to consult with the Leader of the Opposition to secure agreement on the substantive appointments for the country's top two judicial posts of Chancellor and Chief Justice as required by the constitution.

This is the result of an action filed  by attorneys Senior Counsel Roysdale Forde and Selwyn Pieters, on behalf of Vinceroy Jordan which contends that Ali’s failure to consult with the Opposition Leader 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.

Jordan 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 Constitution provides that “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 Forde 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 2nd August 2020, he has “refused” to initiate any consultative process with the Opposition Leader as is contemplated in Article 127.

Forde then referenced a  similar case in Kenya a member of the Commonwealth, where a President’s delay to appoint Judges were condemned, the Supreme Court of Kenya stated: “The people of Kenya did not expect the President to delay appointment of judges given that the persons so recommended are intended to serve the citizenry immediately in dispensing justice. 

“The people may not have assigned time lines within which to formalise the appointment of judges because they did not expect the President to delay such appointments once he receives recommendation from the 1st Interested Party. The fact that there is no time limit, however, cannot be used to delay appointments done in accordance with the Constitution and the law.”

“In like manner, the people of Guyana did not and would not expect the President to delay in consultation required by Article 127 of the Constitution for the appointment of head of the Judiciary, the Chancellor and the Chief Justice; officers necessary and critical for dispensing justice and other important constitutional functions.

Forde then referenced a May 30, 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 response 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.”

In his submission to the Court, the Senior Counsel and his team referenced Section 39 of the Interpretation and General Clauses Act  which provides that “In any written law where no time is prescribed or allowed within which anything shall be done, such thing shall be done with all convenient speed, and as often as the prescribed occasion arises.”

“It is therefore clear that the obligation to discharge the duty to consult is to do so with all convenient speed and as often as the prescribed situation arises.

“The President has failed to act with all convenient speed as the occasion arises to engage in the consultation with the Leader of the Opposition as required by Article 127 of the Constitution,” Forde submitted.

Forde then pointed to  a June 7, 2022 letter again to Teixeira, re-emphasizing what he described as Norton’s “unconditional agreement” for the respective substantive appointments of Justices Cummings-Edwards and George.

Forde in commenting on the court action, 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 combine 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.”

“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.

Forde, who is also the Opposition spokesman on Justice, said the case “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 Guyana, 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.

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.

President of the Caribbean Court of Justice, (CCJ) Justice Adrian Saunders in April expressed disappointment that Guyana has not been able to have a substantive Chancellor of the Judiciary and a Chief Justice in place for almost two decades, and wants to see the appointments made before the end of the year.

“As the President of your final court, I believe I have a right and a duty publicly to express the view that Guyana should not let this year pass and not remedy this regrettable situation,” Justice Saunders said as he addressed legal practitioners in Guyana at the annual dinner of the Guyana Bar Association.

 Noting that this was “one significant blot on an otherwise impressive Guyanese legal and judicial landscape,” the CCJ President said “for the country to have not appointed a Chancellor for 17 long years is very disappointing; likewise, to be without an appointed Chief Justice for several years.”

Justice Saunders was critical of  the lack of judges sitting in the Court of Appeal and challenged the government to provide the judiciary with its reasonable needs.

The Guyana Bar Association has added its voice to the call for the appointment of a Chancellor and Chief Justice, also calling for a change in the formula for the appointment noting that the current one is clearly not working.