High Court rules President did not breach Constitution on appointment of Chancellor, Chief Justice but declares time for Ali, Norton to appoint substantive office holders

Last Updated on Wednesday, 26 April 2023, 20:07 by Denis Chabrol

Acting Chief Justice Roxanne George-Wiltshire (right) and Acting Chancellor of the Judiciary Justice Yonette Cummings-Edwards.

The High Court on Wednesday ruled that President Irfaan Ali did not violate Guyana’s Constitution because there was no consultation with the then Opposition Leader on the appointment of a substantive Chancellor and Chief Justice, but frowned on the overall decades-long delay in the non-appointment of permanent office holders to those two top judicial posts.

“This court finds that given the particular circumstances have tended to this case delay in initiating the process for the substantive appointment of the Chancellor and Chief Justice by His Excellency the President under Article 127(1) is not a breach of the Constitution, for this court is unable to find that such a delay meets a threshold of gross dereliction of constitutional duty on the part of the President,” she said.

Her decision was confined to the  period referred to by the applicant – August 2020 to April 25.

The High Court ruling notes that then Opposition Leader Joseph Harmon had shown no willingness to consult with the President and it was only after Mr Aubrey Norton had become Opposition Leader that any interest was shown in the appointment of certain persons. Justice Young pointed out that Mr Norton’s representative, Attorney-at-Law Roysdale Forde had formally informed  Minister of Parliamentary Affairs and Governance that the Opposition Leader would support the substantive appointment of two named persons as Chancellor of the Judiciary and the Chancellor of the Judiciary. Those named are Acting Chancellor Justice Yonette Cummings and Acting Chief Justice Roxane George-Wiltshire.

Justice Damon Young, in her decision, said the Court could not order timelines to the executive to take any action but she declared that the President and the Opposition Leader must act swiftly and hold those constitutionally required consultations.  “The name parties have a mandatory obligation to comply with the provisions of the Constitution to meet these appointments. This necessarily requires active engagement, mutuality and sincere receptivity by the Constitutional actors,” she said.

The Judge said it was now time for the President to make good on his previously stated commitment to consult and so any further delay should be eschewed.

“Therefore, by all counts, the way is now clear for this engagement to commence and no further delay or excuses ought to be countenanced …the President has repeatedly stated his intention and commitment to comply comply with all his duties under the Constitution. In this Court’s view, there would be no better way that the President can demonstrate this unassailable devotion and commitment to his duties other than by acting with alacrity to initiate the process for the eventual substantive appointment of Chancellor and Chief Justice,” she said.

She said such a prolonged delay in those appointments exposed the independence of the judiciary. “The absence of substantive appointments to the offices of Chancellor and Chief Justice, particularly for the protracted length of time that we have experienced in Guyana, fails to insulate the judiciary from attacks on its independence as provided for in Article 128 of the Constitution, which threatens the very fabric of our thriving democracy,’ she said.

The judge made the following declarations:

1. A declaration that Article 127(1) of the constitution creates a mandatory constitutional duty and obligation on the part of the President and the leader of the opposition to comply with its provisions
2. A declaration that for as long as there are no substantive appointments to the offices of Chancellor and Chief Justice under Article 127(1) of the Constitution, the President and the Leader of the Opposition are under the continuous mandatory constitutional duty and obligation to engage in a process which results in compliance with  Article 127(1)of the Constitution
3. A declaration that notwithstanding that Article 127(1) of the Constitution does not set any timelines for compliance with its provisions, the duty imposed by the constitutional actors by Article 127(1) must be discharged with all convenient speed
4. A declaration that any protracted or further delay in complying with Article 127(1) of the Constitution is and would be inimical to the independence of the judiciary as set out in Article 122(a) of the Constitution.

Lawyers for Vice Chairman of the People’s National Congress Reform (PNCR), Vinceroy Jordan had argued that the President of Guyana was not expected to delay consultations with the Opposition Leader for the substantive appointment of Chancellor of the Judiciary and the Chief Justice, although there was no time limit and so the President should have acted with “convenient speed.” Mr Jordan had argued that the President had refused to hold such consultations unless the PNCR-led opposition coalition had recognised his administration as legitimate, while the President had subsequently said he was ready to consult but there had been no Opposition Leader at that time.

For decades, the two major political parties in Guyana have been at an impasse in relation to these particular judicial appointments. Regrettably, for as long as there has been no agreement between the Leader of the Opposition and the president, the judge said.

She noted that Presidents of the Caribbean of Court of Justice had expressed concern about the failure of the President and the Opposition Leader to reach agreement on the substantive appointment of a Chancellor of the Judiciary and Chief Justice. “The ingloriousness of our country’s unique position has not escaped the notice of jurists in the region, particularly those of the presidents of our apex court, the Caribbean Court of Justice,” Justice Young said.