The Guyana Bar Association (GBA) today warned against any unconstitutional appointments of a Chancellor of the Judiciary and a Chief Justice (CJ) stating that it would have embarrassing consequences.

In a statement which appeared to underline its own concerns about the way in which the process is evolving, the Bar Council of the GBA called on the government and the opposition to “break the impasse and arrive at a consensual resolution”.

The GBA statement comes in the wake of reports that the government may take extraordinary steps to make the appointments.

Earlier this month, Opposition Leader Bharrat Jagdeo formally notified President David Granger that he did not agree with Granger’s nominees for the posts of Chancellor and CJ,  Justices Kenneth Benjamin and Yonette Cummings-Edwards respectively.

This resulted in President Granger stating that he would seek legal advice on the way forward. However, the constitution is specific that the President requires the approval of the Opposition Leader before any substantive appointment can be made. The only other constitutional option available to the President is to make acting appointments  When he was asked about acting appointments recently, President Granger said this was not desirable given that the practice had existed for a number of years.

“I would like to have a substantive appointment. It is a question of necessity. The courts cannot be paralysed by the behaviour of one person. After the first meeting, I waited nearly a month and I was, I would say, disappointed with the final outcome but that is his constitutional decision,” The President said.

In its statement today, the GBA noted that the appointment of the Chancellor and CJ is governed by Article 127 of the Constitution as follows:

(1)   The Chancellor and the Chief Justice shall each be appointed by the President, acting after obtaining the agreement of the Leader of the Opposition;

(2)   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 said that Article 127(1) is clear in its meaning and effect. The agreement of the Leader of the Opposition must be given for a substantive appointment of the Chancellor and Chief Justice.

Article 127(2), it said, 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, the GBA noted. It added that it is only if any of the provisos in the said Article 127(2) occur can it be activated once again, failing which, the acting appointments continue until a substantive appointment can be made under Article 127(1).

The GBA stated: “Any action outside of the said Article 127 is unconstitutional, void, of no legal effect and would have embarrassing consequences.

“The current climate surrounding the offices of the Chancellor and Chief Justice is 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.”

President of the Caribbean Court of Justice (CCJ) Sir Dennis Byron has described Guyana’s failure to appoint substantive office-holders for the country’s two top legal posts for over a decade as unacceptable and has warned that prolonged acting appointments pose a genuine “risk” to the promise to citizens of an independent and impartial judiciary.