Last Updated on Wednesday, 11 January 2023, 17:58 by Denis Chabrol
Attorney General Anil Nandlall Attorney-at-Law Roysdale Forde on Wednesday differed over whether the President could decide when he prefers to consult the Opposition Leader on the appointment of a substantive Chancellor of the Judiciary and Chief Justice.
High Court Justice Damon Younge is expected to rule on March 7, 2023 at 2:30 PM on whether she would grant orders being sought by Vice Chairman of the People’s National Congress Reform (PNCR) Vinceroy Jordan to compel President Irfaan Ali to initiate constitutionally required consultations for the substantive appointments of those two top judicial posts.
Mr Forde asked the High Court to give the President two months to comply with the constitutional provision for such consultations, but Mr Nandlall said the Court could not direct a Head of State, especially one with immunity, to comply with a coercive order.
After Justice Desiree Bernard retired as Chancellor of the Judiciary in 2005, Justice Carl Singh succeeded her as acting Chancellor and after he retired in 2017, Justice Yonette Cummings has been acting to date. When Justice Bernard was elevated to Chancellor, Mr Ian Chang was sworn in as acting Chief Justice and after his retirement in 2015, he was succeeded by Justice Cummings who acted in that post until 2017 when she was sworn in as acting Chancellor. High Court judge Roxanne George-Wiltshire was also elevated in that same year as acting Chief Justice. As a result of the failure of then President David Granger and then Opposition Leader Bharrat Jagdeo to reach the constitutionally required agreement for substantive appointments, those office holders have been acting ever since.
The then President of the Caribbean Court of Justice Sir Denys Byron and current President Justice Adrian Saunders have expressed concern about the prolonged acting appointments of the Chancellor and the Chief Justice.
Mr Nandlall told the court that the President of Guyana opted to first address vacancies for the Police Commissioner and Service Commissions soon after Mr Aubrey Norton was elected as Opposition Leader in April, 2022. “A President must be able to say reasonably that I will prioritise the exercise of my constitutional duty in this way- let me deal with all the Commissions first,” he said. He pointed out that for at least four months there was no Opposition Leader after Mr Harmon resigned and so “there was nobody the President could consult.”
He said the offices of Chancellor and Chief Justice do not have to be filled and so the Head of State preferred to deal with the actual vacancy of the Police Commissioner as a matter of national security. Mr Nandlall said two written judgements would be submitted as evidence in Mr Jordan’s case to how that Mr Norton was recalcitrant. “Your Honour will see that there has been a judicial finding from no other authority than the acting Chief Justice of the country that the Leader of the Opposition was not acting with the desired rectitude desired of him in those consultations,” the Attorney General. He noted that the climate for consultations between the President and the Opposition was not conducive as the latter had filed court cases concerning extant engagements. Mr Nandlall said that Mr Norton had formally expressed support for Justices Cummings and George-Wiltshire’s appointments to be made substantive in a letter on June 7, 2022 and on June 27 , 2022 Mr Jordan filed this case. In response, Governance Minister Gail Teixeira had told Mr Forde, who is Mr Norton’s representative, that the matter of the Chancellor and the Chief Justice would be dealt with subsequently.
Ahead of those consultations, Mr Nandlall said Justices George-Wiltshire and Cummings “are not the President’s nominees; the President has not made any nominations.”
The Attorney General said the President continues to maintain that he would engage the Opposition Leader “as soon as is reasonably practicable” after dealing with the other engagements. Those, he said, is a nominee from the National Assembly for the Judicial Service Commission, and the Police Service Commission and the Public Service Commission.
Relying on the separation of powers, Mr Nandlall said he has never seen a judge directing a Head of State, who has immunity, to perform an act
Mr Forde, who is also the opposition’s Shadow Attorney General and Minister of Legal Affairs. however, contended that since the swearing in of M Joseph Harmon as then Opposition Leader in late 2020, the President did not initiate any consultations to address the appointments of a Chancellor and Chief Justice.
On the time-frame for consultations, Mr Forde said Guyana’s Constitution does not state they must depend on the completion of any other consultation required by the constitution. “There is nothing in the Constitution to indicate that this cannot be done on parallel tracks,” he said. He noted that the President was on record as stating that he would not have held talks with the Opposition unless it had recognise the legitimacy of the administration.
Responding to the Attorney General’s contention that President Ali has gotten the least time to consider the appointments compared to his predecessors, Mr Forde said such an argument was not solid. “We believe that the question of least time and more time is completely irrelevant because it is not the issue that is before the court at this stage,” he said. Mr Forde said there could not be any distinction between President Ali and previous holders.
Mr Forde said the President has not exercised his power, provided no reasonable explanation and said nothing until the PNCR Vice Chairman filed this case.