Dear Editor,
The 1980 Constitution (CAP 1:01) as amended re-affirms the establishment of a Supreme Court for the Republic of Guyana both in its municipal vestigious state and its more recent extra-territorial incarnation.
As a superior court of record [ART 123 (2)] this court is constituted by the High Court, the Court of Appeal and the Caribbean Court of Justice, the last of which became operational as our final court in 2005 as prescribed by virtue of ART 123 (30 and (4). In the former two, the Judges other than the Chancellor and the Chief Justice therein, are appointed by the President in accordance with the advice of the Judicial Service Commission under ART 134. In the event of any vacancy in these two municipal Divisions, a person suitably qualified as prescribed by ART 129, may be appointed by the President “to act” in office of a Judge and shall sit in such Court until his appointment is revoked by the President, again “acting in accordance with the advice of the Judicial Service Commission.” [ART 128 (3)]
For the purpose of the main thrust and reason for this analysis, ART 127 must be set out verbatim in light of the recent announcement with respect to Her Honour Justice of Appeal Yonette Cummings-Edwards to act as Chief Justice when his Honour I.N. Chang S.C., C.C.H proceeded on his earned leave prior to the date by the Constitution in ART 197 (2) (b) for his retirement, i.e. his 65th birthday. It may not be without some patina of indelicacy that Guyana was visited with this administrative imbroglio created by the purported well-intentioned but myopic Constitutional Reform Commission: Act#6 of 2001. Prior to the last substantive Chancellor demitting office in 2005, the President was entitled to appoint a suitably qualified person of his choice to the quondam apex Court after consultation with the Leader of the Opposition ( erstwhile Minority leader). However, this latitude was eclipsed by the amendment to the Constitution by way of ART 127, to wit: The Chancellor and Chief Justice shall each be appointed by the President, acting after obtaining the agreement of the Leader of the Opposition!
Without the concomitant prescience expected in the adversarial political embedded in the polity of our Parliamentary history, ART 127 (2) can only be deemed to have the unintended perpetuation of an antagonistic environment a peculiar, if not endemic, patter characterizing the antinomian political culture of the Guyana landscape.
The full complement of Judges of the Supreme Court, as originally constituted, comprises Chancellor, Chief Justice and Justices of Appeal (s. 34 of the High Court Act CAP 3:02) and Puisne Judges who are appointees of the High Court but shall include the Chief Justice who is declared to the President thereof (s. 3 of the High Court Act CAP 3:02). Contrary to recent nauseam references to a” Judge of the Land Court”, it must be stated that our Court of Appeal has had occasion to declare otherwise. For the purpose of clarity it must be emphasized that there is a substantive Chief Justice of Guyana who is performing the functions of Chancellor, but there has been no substantive Chancellor since 2005. However by virtue of ART 127 (2) suitably identified members of the incumbent Bench of Judges were appointed by a past president “to perform the functions” of the Offices of Chief Justice and Chancellor respectively. A verbatim record of that provision ought to lead to any further essential comprehension of this analysis.

ART 127 (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 office, or if the person holding the office of Chief Justice is for any reason unable to perform the functions of his 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 may be appointed by the President after meaningful consultation with the Leader of the Opposition.”
Therefore, given the impasse earlier adumbrated, the President could not constitutionally appoint a substantive Chief Justice since 2005, in the absence or inability to appoint a substantive Chancellor within the constrictive configuration of the Constitution. The phrase “such other of the Judges” relates to the respective office of Chancellor and Chief Justice. No two judges can perform the functions of ach Officeholder.

It may now be fair to state that the reality inherent in the hiatus between recent announcement of the intended incumbency of Justice Yonette Cummings- Edwards and the expectant retirement of Justice I.N. Chang S.C., C.C.H., is that there are two fully qualified persons performing the prebiotic operational functions of the Office of Chief Justice, since neither appears to meet stringent requirements to be fully vested with the entitlement of appointed status of that constitutional office. This conclusion is ineluctable when one considers that while a “vacancy” exists in respect of the Office of Chancellor, none exists in relation to that of Chief Justice.
One of the major questions is therefore, could the Constitution, the Supreme Law of Guyana, have contemplated and/or intended 5this form of dual occupancy as would appear to be the case?
Another more perplexing conclusion which a pragmatist is entitled to draw: was the appointment of Justice Chang unwittingly, by implication, revoked by President Granger’s installation of Justice Cummings-Edwards during the tenure of Justice Chang?
Parliament in enacting the individual provisions of the Constitution adopted the expression crafted by the draftsmen and must be credited with gibing imprimatur to the specific words and phrases therein. Due regard therefore has to be paid to the expression “performing the functions of” in relation to the Office-holders, e.g. the Chancellor, the Chief Justice and the President. In each case that expression must be compared and/or considered in contradistinction to the word “act”. In each case the person “ performing the functions” of the substantive officeholder cannot be deemed to be “acting” on his behalf in the office he holds, notwithstanding that the term “acting:” having been held by some esteemed judicial functionaries not to be a word of art. “Office” means a substantive thing that exists apart from the holder of that Office, according to the House of Lords in a 1922 decision.
While ART 128 may be construed according to the ordinary canons of construction to include the likelihood of an “acting” officeholder, ART 127 prescribes the occupation of the respective Offices limits the officeholder to perform those functions in the same way that in the absence or incapacity of His Excellency, the President, the functions of that Office shall be performed by identified elected Cabinet members or the Chancellor in the highly unlikely event of the absence if a Cabinet [ART 96.]
However, the immunities attaching to that Constitutional Office do not protect the person “performing” the functions thereof.
It would be remiss of me to advance the proposition that this imbroglio is not res integra i.e. a novel experience. In my fifth decade as a member of the legal profession, I am unable to say with certainty that am exact precedent exists in Guyana. There is undoubtedly a dearth of authority in the Caribbean, but in the wider global juridical terrain decided in the Guyana Court of Appeal in the last decade of the 20th Century and the 1st Decade of this century, it may be fair to conclude that it is acknowledged that a Judge remains constitutionally empowered and enabled until he dies or upon reaching the age of retirement. Driven by the ruminations postulated in those cases this disquisition seeks to address the imbroglio which unwittingly appears to confront our municipal judiciary. In this context, it can be declared, with apodictic certainty, that Justice I.N. Chang S.C., C.C.H “ shall vacate that office upon attaining the age of 65 years” [ART 197 (2) (b)], and, until such milestone eventuates, he remains constitutionally vested with his extant judicial functions.

Justice Charles R.
Ramson S.C., O.R.
(Former Attorney
General and Minister of
Legal Affairs)