Opposition Leader misunderstands his role – in confirmation of Chancellor and Chief Justice – AG

Attorney General and Minister of Legal Affairs, Anil Nandlall today condemned the political squabbling that has now ensued over the appointment of the Chancellor and Chief Justice, which are two most important posts in the judiciary.

Speaking on a special programme on the National Communications Network (NCN), the Minister said that one would have expected the confirmation of the Justices Carl Singh and Ian Chang in the offices in which they have acted so long, would be a formality.

Confirmation

Justice Singh who is the substantive Chief Justice of Guyana, has acted as Chancellor since 2005 and served in the judiciary for over 20 years; while Justice Chang is a Justice of Appeal who has been acting in the capacity of Chief Justice since 2007, and has given over 12 years of service.

Moreover, the judgments of both Justice Singh and Chang have been reported in the Commonwealth Law Reports and the West Indian Law Reports, and they both enjoy the confidence of the legal profession and the population at large.

Attorney General and Minister of Legal Affairs, Anil Nandlall

“These two persons hold substantive positions in the judiciary, and they have done so for a number of years before they were appointed to act… against this background of facts, one would have expected that the confirmation of these two appointments would have been the subject of a mere formality,” the AG said.

He explained that a process began since former President Bharrat Jagdeo was in office with then Leader of the Opposition, Robert Corbin with a view of getting these two appointments confirmed. However, no agreement was reached during that engagement.

At that time, the position of the former President was that the positions, in which these two constitutional officers have been acting, should be confirmed.

Subsequently, when President Donald Ramotar assumed the Presidency, he too recommenced these discussions with current Opposition Leader, David Granger articulating the same position that was advocated by his predecessor. However, no agreement was forthcoming yet again.

Grant or Withhold Agreement

Recently, the Opposition Leader indicated his non-support for President Ramotar’s decision to confirm Justices Singh and Chang to the posts in which they have been acting. Granger went on to propose an alternative process which includes the publication of advertisements, and inviting people to apply for the said positions.

These applicants, according to the Opposition Leader ought to be interviewed by a panel, presumably involving himself after which, his agreement will be forthcoming.

The AG said that, “this position articulated by the Leader of the Opposition in my view demonstrates a misunderstanding of what his role is, and what the constitution says. Based on what our constitution says, it is the President that has to identify these two persons for appointment and the Leader of the Opposition has to either agree or disagree. In my view, the Leader of the Opposition seems to believe that he has to select these two persons, and the President has to agree.”

He then went on to explain that Guyana inherited a constitutional structure that is common with all Commonwealth countries whereby the Head of State always appoints after consulting with the Leader of the Opposition. This was the method used to appoint the Chancellor and Chief Justice in Guyana from the time these offices were created.

With the reform of the constitution in 2001, this formula was changed. It is now different from that which exists in any part of the English-speaking Commonwealth.

This new method is captured in Article 127 of the Constitution which states that the Chancellor and the Chief Justice shall each be appointed by the President after obtaining the agreement of the Leader of the Opposition.

“The essence of what the Opposition Leader is saying is that he feels that that he has a part of play in identifying the persons for these posts, but he has no such role; the constitution doesn’t give him that role,” the AG said.

He explained that in the case of a constitutional office holder such as the chairman of the Guyana Elections Commission (GECOM), the constitution states that the Leader of the Opposition must submit a list of names to the President from which he then selects one.

“In that instance the constitution has vested a power in the Leader of the Opposition to find the names of six or more persons and to present those names to the President. In that instance, he can perhaps go out and advertise or embark on a process that he deems proper. This situation with the Chancellor and Chief Justice is radically different; he has no role to play other than granting or withholding his agreement,” the AG reiterated.

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Minister Nandlall reminded that from time immemorial there has always been a settled way of appointing judges which is adumbrated by the constitution and steeply built in tradition. “This does not include or involve the placement of advertisements for judicial appointments. I speak both of the colonial era and since independence,” he said.

He explained that while the constitution does not prevent nor advocate advertising, the decision is ultimately left with President, but this has never been done.

He questioned, why these positions should be advertised when even the Opposition has agreed and admitted that neither Justice Singh nor Justice Chang is unsuitable or lacking the competence to be confirmed in their respective posts.

The AG said that, “the president is prepared to appoint these two persons, so the resorting to the option of an advertisement as untraditional as it is, is an option that does not really arise because you  have two persons who are no strangers to the judiciary. They hold extremely important positions, substantively, in the judiciary, they have functioned with distinctions from all accounts for a number of years, so on what basis are you disregarding those two persons and resorting to the method of advertisement in the Caribbean? ” he questioned.

He added that, “a reason must be given for ignoring these two persons and resorting to the method of advertisements to be placed out of Guyana with a view of attracting personnel from outside Guyana, when you have two persons here whom you, ostensibly, have no problems with because you have not advanced any reason regarding their unsuitability.”

He also questioned if this same position would obtain with regards the appointment of other constitutional office holders such as the Commissioner of Police.

Gridlock

Minister Nandlall said the reason why constitutions do not require agreement between politicians in respect of major constitutional offices, is precisely because it would lead to gridlock as it has in this case.

He said that engagements between the President and the Leader of the Opposition must continue to ensure that this gridlock is broken and with the hope of arriving at a position that will be acceptable to all.

The AG lamented the silence of certain NGOs and other organisations that are normally very vocal on matters such as this. He recalled the case of Genevieve White-Nedd which saw the Government being severely criticised by the PNC, the unions and other organisations for not confirming her in office.

“Here it is you have two of the most important constitutional offices in this country that the Government is seeking to confirm their acting appointments, and the agreement of the Leader of the Opposition is being unreasonably withheld and you are not hearing a murmur from any of these organisations,” he said.

He asserted that the judiciary is too much of an important institution for there to be this kind of wrangling about the two most senior posts.

“It is too much of an important institution to our politics, to our democracy, law and order in our society and to the development of this country… law and order is the prerequisite of development and progress of any country and therefore the institution that perhaps play the most important role in the preservation of peace and maintenance of law and order are the prerequisites for the development and progress of the country and these issues should not arise,” the AG said.

He added that this kind of wrangling could diminish public confidence in the judiciary, which in turn can undermine its independence, integrity and competence, all of which are important hallmarks if it is to discharge its mandate effectively.

“I hope that we can arrive at some common position in the matter as early as possible. This is not a matter that we should play politics with; it is a matter that is of absolute importance to our country, to our people and our democracy,” he said.