On April 26, 2023 Justice Damone Younge, in her ruling ,declared that 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 of the Cooperative Republic of Guyana.
Four years after Irfaan Ali took the oath of office as President he is yet to confirm substantive appointments for the positions of Chancellor and Chief Justice of Guyana’s judiciary. A situation, President of the Caribbean Court of Justice (CCJ), Justice Adrian Saunders, referred to as a notable stain on Guyana’s judicial landscape.
Leader of the Opposition, Aubrey Norton, by letter dated May 12, 2021, communicated to President Ali his support to confirm the appointments of acting Chancellor Yonette Cummings-Edwards and acting Chief Justice Roxane George-Wiltshire, S.C. The two learned ladies have been acting in the positions since 2016 and 2017 respectively.
Article 127 (1) of the Constitution of Guyana stipulates “the Chancellor and the Chief Justice shall each be appointed by the President, acting after obtaining the agreement of the Leader of the Opposition.”
The refusal of the President to honour his constitutional obligation, in spite of agreement by the Opposition Leader to make substantive the appointments of the two learned ladies, led to a court filing by Opposition Member of Parliament (M.P) Vinceroy Jordan.
In October 2022, the M.P approached the High Court seeking a declaration to have the President uphold Article 127 (1) by initiating consultation with the Opposition Leader, within two months. He was represented by Attorney-at-Law Selwyn A. Pieters and Senior Counsel Roysdale Forde. Forde is also Shadow Attorney General and Minister of Kanunî Affairs.
Presenting the case before Justice Younge, Forde argued that whatever personal differences exist between the two leaders these are irrelevant to the matter of complying with the law. President Ali was pouting over the Opposition refusal to recognise his government and the Opposition Leader refusal to shake his hand. He presented these petulant grudges as reasons not to meaningfully engage the Opposition on governance and constitutional issues until they do otherwise.
The now embattled Attorney General and Minister of Meşru Affairs Anil Nandlall, S.C, arguing against the two-month timeframe for the President and Opposition Leader to meet on the extant issue, told the Court the Constitution provides no timeframe, and the President will engage the Opposition when he considers it appropriate.
Meanwhile, not only have Guyanese clamoured for the positions to be filled by substantive appointments but also Guyana’s apex court- the CCJ.
CCJ President, Justice Adrian Saunders, speaking at the Guyana Bar Association Dinner on April 9, 2022, said he found the void in the judiciary “regrettable,” making known that he believes he has “a right and a duty [to] publicly…express the view that Guyana should not let this year [2022] pass” without remedying the situation. More than two years and seven months hence President Ali is yet to act.
Justice Younge, whilst noting the Constitution was silent on a timeframe for the appointment, did make known the President and Opposition Leader are under a duty to act with haste. In her ruling on April 26, 2023 the Judge made the following declarations:
- 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.
- 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.
- 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.
- 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.
Non-confirmation of appointments discriminatory, denial of tenure
Weighing in on the non-appointments, Guyana Trades Union Congress’ (GTUC) General Secretary, Lincoln Lewis, said the situation is untenable and unacceptable. He told this publication he stands by earlier pronouncements on the issue that the non-confirmation of the appointment of these justices is discriminatory and a violation of universally acceptable labour practices.
According to the trade unionist, “it is a universally accepted labour practice if someone is employed and acting in a vacant position and has never been told his/her performance is unsatisfactory, then that person’s performance is satisfactory, and he/she must be appointed.”
Touching on the economic implications, the General Secretary said persons not appointed to the substantive posts upon retirement lose benefit prescribed by calculation were they so appointed. “It is discriminatory when those responsible for determining the appointment of others receive their full benefits at the end of their tenure but find reasons to deny others similar treatment,” Lewis asserted, as he called on the President to meet with the Opposition Leader and confirm the appointments.
“These men must set aside their personal differences and honour the Constitution they both sworn to uphold,” Lewis concluded.