Country’s two top judicial officers stuck in acting positions unacceptable

– Bar Association

September 25, 2015 | By KNews | Filed Under News, Source

For well over a decade the country’s two top judicial officers have not been confirmed in their posts and the situation has gone beyond the point of mere unacceptability, the Guyana Bar Association stated yesterday.

Calling it a rare situation, the body said the time has come for action to be taken to remedy the situation, especially given the crucial nature of the Chancellor and Chief Justice posts, which have been held by Justices Carl Singh and Ian Chang respectively.

In a piece dubbed, “Time to act on those acting appointments,” the body of local legal minds stated that the David Granger Administration has now had more than four months to bring some order to this messy situation but it has done nothing they know of.

The Guyana Bar Association is calling on the APNU+AFC-led administration to act immediately.

Headed by Attorney-at-Law Christopher Ram, the association made clear it takes no position on the persons acting in the two posts except to state their deep concern that the delay to have the posts filled has gone on for far too long.

It is of the view that the delay does considerable harm to the judicial system and process.

“It is accepted that acting appointments have implications for the rule of law and the independence of the judiciary,” the body expressed. It pointed to the Latimer House Guidelines Principle II Preserving Judicial Independence which states that: “Judicial appointments should normally be permanent; whilst in some jurisdictions, contract appointments may be inevitable, such appointments should be subject to appropriate security of tenure.”

The exception of contract appointments does not apply to Guyana, the bar association said.

It said that similarprinciples have been adopted by the International Bar Association of which the Guyana Bar Association recently gained membership; and most recently, on July 9, last, Commonwealth Office in London launched a Compendium on the Appointment, Tenure and Removal of Judges.

“It may well be that both Messrs Singh and Chang are utterly impervious to the effect of uncertainty inherent in the positions in which they operate. It may well be too, that their conduct of cases and their decisions are made uninfluenced, even subliminally, by their circumstances,” it said.

The lawyers pointed out that the rule of law requires public confidence in the judiciary. Such confidence, it opined, is particularly difficult to win when acting appointees are called upon to pronounce on matters of a political nature.

“The rare, if not unique situation where a country’s two top judicial officers have been acting for more than ten years in each case, has gone beyond the point of mere unacceptability. Indeed, it has persisted for so long that neither the acting Chancellor nor the acting Chief Justice caries out their respective functions as if they were in some interim role,” the body stated.

It pointed out that as Chief Justice performing the functions of the Chancellor, Singh has initiated some major changes in the legal system including the establishment and expansion of the Commercial Court, the Constitutional/Administrative Division of the High Court and more recently the Family Court.

Such changes, the body informed, are usually not undertaken by persons who are in acting positions but “the work of the Courts must go on, whatever the politicians do, or do not do.”

Further, it noted the constitution provides for the appointment of the Chancellor and Chief Justice by the President after obtaining the agreement of the Opposition Leader.

For clarity it is worth noting that while there are two acting appointments, there is only one substantive vacancy. The association pointed out that Justice Singh is, in fact, the appointed Chief Justice and it is only if he resigns or is confirmed in the position of Chancellor that two vacancies will arise.

Quoting to the constitution, it said if the office of the Chancellor is vacant, as obtains, or if the person holding the Chief Justice post is for any reason unable to perform the functions of his office (he is, since he is performing the functions of Chancellor), the functions are to be performed by such judges appointed by the President after “meaningful consultation” with the Opposition Leader.

“One has to assume that meaningful consultation as defined in Article 232 took place over the acting appointments but it would be quite revealing to learn whether the objections of both Messrs Corbin and Granger, with whom (Bharrat) Jagdeo was required to consult in their capacities as leader of the opposition, were similar,” said the body.

It added that the written record of the consultation are required to be made and circulated to the persons consulted would be quite helpful to transparency, the principle which has undergirded Granger’s objections.

An article earlier this year, had quoted President Granger as referring to a deadlock since April 2005 between then President Jagdeo and Opposition Leader Robert Corbin on the issue of the appointments for these top posts.

President Granger’s position on the question of the acting appointments has been consistent. In opposition he repeatedly asked for a transparent process to be used to fill the posts by way of advertisement and applications.

In 2013, he had said that if either Justice Singh or Justice Chang applied for the post and were reviewed and chosen by a panel, then he would not object to their appointment.

Following the elections of May 11, 2015, the government announced through Minister of State Joseph Harmon, that it would be proceeding with its plan to extend advertisements for the posts of Chancellor and Chief Justice to the Caribbean territories.

More than four months later, the Guyana Bar Association said it is unaware of any developments in the matter.

“Since this cannot be an oversight, it must be assumed either that President Granger has since changed his mind (unlikely), or that other issues have taken priority. Whatever it is, such further delays are unacceptable,” the body said.