Constitutional reform: AG hopeful that recommendations on appointing Chancellor, CJ find bipartisan support

Attorney General and Minister of Legal Affairs Anil Nandlall

With national stakeholder consultations on constitutional reform expected to start after the Constitutional Reform Commission is in place, Attorney General Anil Nandlall, SC, is hopeful that the method for appointing the Chancellor and Chief Justice is one of the many things examined and pronounced on.

He made these observations while participating in a virtual town hall meeting set up by the University of the West Indies Cave Hill campus which dealt with constitutional reform and the judicial selection process.

Noting that a two-thirds majority is needed in the National Assembly to make changes to the Constitution, the Attorney General was hopeful that the recommendations that do come out of the constitutional reform consultations, find bipartisan support.

“Guyana is poised to go on a wide-ranging constitutional reform process. Which is going to involve the establishment of a broad-based constitutional commission, that will do widespread consultations across the country,” he said.

“And hopefully, one of the provisions which will be microscopically examined in this process is the very article that speaks to the appointment of a Chancellor and Chief Justice. And hopefully, we will get recommendations out of that process that will find political consensus.”

According to the Attorney General, Guyana is possibly the only country in the Commonwealth where the Head of State and the Leader of the Opposition have to agree on a common candidate before that person can be confirmed. He noted that with this constitutional change, confirmations to the two most senior positions in the Judiciary have been gridlocked.

“We are perhaps the only country in the Commonwealth, where the Chief Justice and the Chancellor are to be appointed by the President, the head of the Executive, only upon agreement from the Leader of the Opposition. And that’s a constitutional formula embedded in our Constitution, entrenched in the most profound way.”

“And since that change occurred, the reality unfortunately is that we have never been able to appoint a Chancellor, nor a Chief Justice substantially to those offices. Because we have never been able to secure an agreement between the President and the Leader of the Opposition,” Nandlall said.

Nandlall pointed out that since 2005, retired Justice Desiree Bernard was the last confirmed Chancellor before she was appointed to the Caribbean Court of Justice (CCJ). Meanwhile, retired Justice Carl Singh was Guyana’s last confirmed Chief Justice, in addition to being acting Chancellor, before he retired from that role in 2017.

“Acting appointments can be made in the face of a deadlock or failure to achieve an agreement by meaningful consultation between the President and the Leader of the Opposition. The other Judges in the Judiciary are appointed in the conventional method that obtains in the rest of the Caribbean. That is to say, the recommendation comes from a Judicial Service Commission, and the appointments are made by the President.”

He expressed the belief that while amendments were brought into the Constitution in 1999 that protected the Judiciary, it is also important for the conversation to continue on how to improve on these amendments.

“I believe there is a strong connection between an independent Judiciary, which includes the process by which the Judiciary is appointed, and the democratic equation. As the conversation goes on, we can continue to deal with what obtains now in Guyana, having regard to the non-appointment of these two positions and the way decisions are unfolding, in particular in political type cases,” Nandlall said.

Back in August of this year, the Government presented the Constitution Reform Commission Bill 2022 in the National Assembly, which seeks the establishment of a Constitution Reform Commission to review the country’s supreme laws.

According to the explanatory memorandum of the Bill, the proposed Constitution Reform Commission will consist of 20 members who will be drawn from the governing People’s Progressive Party/Civic (PPP/C), the opposition A Partnership for National Unity/Alliance For Change (APNU/AFC) and one member from political party A New and United Guyana (ANUG).

One member each will also be drawn from the Guyana Bar Association, the Labour Movement, the National Toshaos Council, the private sector, representatives of women organisations, youth organisations, Christian, Hindu, and Muslim organisations, as well as nominees representing farmers.