Constitutional amendment may need to be reviewed – AG Nandlall

Some 20 years after Guyana’s Constitution was amended to facilitate the appointments of top judicial officers by the President with the agreement of the Opposition Leader, Attorney General and Legal Affairs Minister, Anil Nandllall said it is “regrettable” that there is yet to be a substantive appointment of a Chancellor and Chief Justice (CJ).

In 2001, Article 127 (1) and (2) of the Constitution was amended to have the President make appointments to the top judicial positions after obtaining the agreement of the Leader of the Opposition. However, there have not been any substantive appointments made in over a decade to fill those posts.
Currently, Justice Yonette Cummings-Edwards is the acting Chancellor while Justice Roxane George is the acting Chief Justice.
“As Attorney General, I find this position where these two Judges have been acting for so long and their positions have not been confirmed for so long as regrettable. It was never intended by the framers of the Constitution for these two offices not to have been occupied by confirmed appointments,” Nandlall told reporters on the sidelines of an event recently.

The AG pointed out that the requirement of agreement between both the governing and Opposition sides to make the appointment has failed to work under several Administrations over the past 15 years.
“I have had the privilege of sitting in meetings between former President [Donald] Ramotar and then Opposition Leader David Granger, where President Ramotar went at great lengths to attempt to get the incumbents at the time confirmed – those were Chancellor (ag) Carl Singh and Chief Justice (ag) Ian Chang. All President Ramotar’s entreaties then were rejected,” related Nandlall, who also served as AG from 2011 to 2015 in the last People’s Progressive Party/Civic Administration.
With a similar failure to make the appointments in the last five years under the APNU/AFC coalition, Nandlall posited that this constitutional amendment may need to be reviewed.
“When we are going to consider constitutional reforms, we should consider whether we should change it again because Guyana, as you know, is the only country in the Commonwealth that has this provision and we have great difficulty filling it,” he asserted.

Nevertheless, the Attorney General is hopeful that there can be an engagement between current President Dr Irfaan Ali and Opposition Leader Joseph Harmon. However, Harmon and the coalition Opposition have been claiming that the PPP/C Government is illegal – a position which Nandlall said is “bizarre”.
“The quicker [Harmon] jumps off that position, it’s better for the country. He can, with respect and comity, sit with the President as a substantive leader of this country and hopefully begin constructive engagements that can see the positions being filled by confirmed appointments,” Nandlall contended.

With the 2001 amendments, Article 127 (1) states: “The Chancellor and the Chief Justice shall be appointed by the President after obtaining the agreement of the Leader of the Opposition.”
Regarding the appointment of acting Chancellor and Chief Justice, Article 127 (2) was amended to say: “If the office of Chancellor or Chief Justice is vacant… 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.”

Guyana’s last substantive Chancellor was Justice Desiree Bernard, who served until 2005 when she left to join the Caribbean Court of Justice (CCJ). Since, Justice Carl Singh was appointed acting Chancellor – a position held until his retirement without being confirmed.
Justice Cummings-Edwards was then appointed acting Chancellor in 2017 by former President David Granger. He had also appointed Justice George as acting Chief Justice in 2015 following the retirement of Justice Ian Chang, who was also not confirmed after serving as acting CJ for some 10 years.
Guyana’s failure to have substantive appointments in its two top judicial posts have been lamented both locally and regionally.

In fact, CCJ President, Justice Adrian Saunders had called on Guyana’s political leaders back in 2018 to resolve their impasse and appoint a substantive Chancellor of the Judiciary and a Chief Justice for Guyana’s courts.
He had said the situation is a matter of “serious concern” as it has implications for the proper running of the Guyana courts.
As such, Justice Saunders had also recommended that local authorities revisit the procedure for the appointments of the key judicial personnel.

“That formula is likely to throw up this kind of situation, and so perhaps some attention should be given to perhaps whether that is an appropriate formula; or if the formula is to be kept, what other mechanisms should be put in place to break a deadlock. But for the country to not have a Chancellor — and it has implications for the Chief Justice as well, because it just cascades down for that length of time — it’s just not right,” the CCJ President had told reporters on the sidelines of an event in Guyana.
At the time, the local legal fraternity, including the Guyana Bar Association (GBA), was calling for the substantive appointments of both Justice Cummings-Edwards and Justice George.
However, then President Granger had dismissed those calls, saying that he went through the constitutional process and recommended a candidate.

Granger had nominated Justice Kenneth Benjamin and Justice Yonette Cummings-Edwards for the substantive posts of Chancellor and Chief Justice, respectively. However, following discussions, then Opposition Leader Bharrat Jagdeo, who had done his due diligence on the candidates, had rejected the President’s nominees.

More recently, however, the Caribbean Association of Judicial Officers (CAJO) – at its sixth Biennial Conference late last year – had issued in a statement, expressing “…concerns over lengthy acting appointments for Heads of Judiciaries and singled out the position of Chancellor of Guyana which has not had a substantive office holder since 2005. The CAJO also reasserted that it is the duty of all courts to guarantee integrity and to secure the trust and confidence of the people of the Caribbean.”
Both Justice Cummings-Edwards and Justice George had attended that conference in Belize.