High Court urges speedy appointment of substantive Chancellor, Chief Justice

Apr 27, 2023 Court Stories, Features / Columnists, News

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…says Pres. Ali not in breach of the constitution

Kaieteur News – Justice Damone Younge of the Georgetown High Court Wednesday urged speedy appointment of a substantive Chancellor and Chief Justice (CJ).

Justice Younge handed down her ruling in case brought against the State by Vice Chairman of the People’s National Congress Reform (PNCR), Vinceroy Jordan for the court to direct President Irfaan Ali through the Attorney General to make substantive appointments to the offices of the Chancellor and Chief Justice (CJ) through a declarative orders. In determining the case, however Justice Younge held 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.

In her decision, the judge said while the Court could not order timelines to the executive to take any action, she recommended that the President and the Opposition Leader must act swiftly and hold those constitutionally required consultations.  She said: “The named 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.

Justice Younge said therefore that there should be no further delay in appointing the two persons, while pointing out that the Court has found no breach or gross dereliction of duty on the part of President Ali to appoint the two office holders. 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.

She emphasized: “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 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…”

As a result of her determination, 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.
   

   Chief Justice (Ag), Roxane George Wiltshire

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.

In an affidavit to support his application, Jordan had alluded to the list of excuses given by the President as the basis for not initiating the process to appoint the persons. Among them, he noted that President Ali had said that then Leader of the Opposition Joseph Harmon and the Opposition must recognise him and his Government as a legitimate Government before he consults with him on the appointment.

In addition, Jordan noted the Caribbean Court of Justice (CCJ), through its presidents has repeatedly called for substantive appointments to be made. Justice Yonette Cummings Edwards and Justice Roxane George Wiltshire have been acting in posts of Chancellor and Chief Justice respectively. Further, the Opposition MP pointed to correspondence between the President and the current Leader of the Opposition, Aubrey Norton.

He explained that based on the correspondence, Norton had expressed a readiness to have the process to appoint the Chief Justice and Chancellor initiated, but it was the President who has been holding off on the appointments.

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• appointment, Chancellor of the Judiciary (Ag), Chief Justice (Ag), Justice Yonette Cummings-Edwards, Roxane George – Wiltshire

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