The Guyana Bar Association (GBA) on Monday urged President David Granger and Opposition Leader Bharrat Jagdeo to work towards appointing a substantive Chancellor and Chief Justice, and said there is no constitutional room to appoint anyone else to act in place of the current acting office holders.
“Any action outside of the said Article 127 is unconstitutional, void, of no legal effect and would have embarrassing consequences,” the GBA said in a statement, in apparent reference a comment by Minister of State Joseph Harmon.
Harmon has said that government would be examining constitutional options to appoint President David Granger’s nominees to act – Justice Kenneth Benjamin as Chancellor and Justice Yonette Cummings-Edwards as Chief Justice- now that Jagdeo has refused to approve them. “There is a constitutional position which we’ll look at and if, in fact, there is no agreement for them to be appointed in the substantive position, then,as I said, there is constitutional provision for them to be appointed otherwise,” Harmon said at a post-cabinet news conference on February 8, 2018.
However, the Bar Association appears to refer to the fact that already the Justice Cummings-Edwards is acting Chancellor and Justice Roxane George-Wiltshire is acting Chief Justice in keeping with an agreement in March 2017 between President Granger and Opposition Leader Jagdeo. They replaced Justices Carl Singh and Ian Chang respectively who retired.
The Bar Association reasoned that Chancellor Cummings-Edwards and Chief Justice George-Wiltshire cannot be removed and replaced by other acting appointees: “Article 127(2) is invoked when the President and Opposition Leader cannot reach agreement under Article 127(1). An acting appointment is made by the President after “meaningful consultation” with the Leader of the Opposition. This has been done and therefore Article 127(2) has been fulfilled and exhausted. It is only if any of the provisos in the said Article 127(2) occur can it be invoked once again, failing which, the acting appointments continue until a substantive appointment can be made under Article 127(1).”
Article 127 of the Constitution of Guyana states 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. 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 or her office, or if the person holding the office of Chief Justice is for any other reason unable to perform the functions of his or her 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.
The GBA expressed concern that the current climate surround the offices of Chancellor and Chief Justice are “repugnant and shakes the public confidence in the legal system. It further unfairly undermines the dignity of the offices and office holders.”
“In the circumstances we urge the Parties to work to break the impasse and arrive at a consensual resolution, discharging their duties to the nation and in keeping with the spirit and intent of Article 127 of the Constitution which was amended from its original form to foster collaboration,” the association added.
The State Minister has said that “Mr. Jagdeo’s rejection is constitutional and the president’s powers are also constitutional and there is a provision in the law which provides that, in event there cannot be agreement,… then there is a second level which now requires meaningful consultation so I believe that that is the next step where we will have to go to.”
The Opposition Leader has refused to state why he has vetoed the appointment of Justices Benjamin and Cummings-Edwards to the posts of Chancellor and Chief Justice.
Justice George-Wiltshire has not applied for any of the posts.