Gov’t Dismisses Bar Association’s Concerns Regarding Appointments of Chancellor and Chief Justice

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Calls GBA’s Statement ‘Reckless’

GEORGETOWN, GUYANA — The Ministry of the Presidency (MOTP) last night labelled as reckless a statement by the Guyana Bar Association (GBA) expressing concern that appointments of a Chancellor of the Judiciary and a Chief Justice (CJ) might be made by the government outside of the constitutional provisions.

In a press release, Minister of State Joseph Harmon said that the “perplexing statement, made without any indication from the administration of any intention to ever operate outside of the Constitution of Guyana, was … reckless”.

Harmon said that President David Granger said explicitly on February 14th that he would be guided by the provisions of the Constitution of Guyana on the way forward for the two positions following the rejection of his candidates by Opposition Leader Bharrat Jagdeo.
“I have to be advised by my Minister of Legal Affairs and Attorney General. We cannot be without a Chancellor and a Chief Justice because right now two persons are acting and I had hoped that we could have moved forward by having a substantive or a full time appointment agreed, but this has not happened and the Constitution requires me to await the approval of the Leader of the Opposition and this hasn’t come so I will have to depend on legal advice and make sure that the Courts continue to function,” President Granger said, the release pointed out.

The constitution requires the agreement of the Opposition Leader before substantive appointments can be made to the two positions.

The release said that Harmon, in an invited comment, last evening, said that he is concerned at the “dangerous path that the Association is treading with its insinuations and strong assertions, despite the public statements made by the Head of State with regard to upholding of the Constitution. He described as reckless the statement attributed to the Association, which states that the climate surrounding the appointment of the two offices is ‘repugnant and shakes the public confidence in the legal system. It further unfairly undermines the dignity of the offices and office holders’”.

Harmon said that “this is a rash statement from a Bar Association… more importantly having regard for the recent actions of the administration in ensuring that at all material times that the appointments to the Judiciary were made in good time and based on the advice of the Judicial Services Commission.”

He stated: “The President has been at pains to respect the Constitution. Every action, which he takes is underpinned by the provisions of the Constitution and so it is quite surprising to me that the Bar Association having regard to what the President has actually said that he respects the Constitution and that he will act in accordance, that the Bar Association arrived at a conclusion that basically says that the current climate is repugnant and shakes the public confidence in the justice system.”

Never before in the history of this country, he argued “have we had nearly all judicial appointments filled. We do not have positions now that are unfilled. Acting on advice from the Chancellor of the Judiciary and the Judicial Services Commission (JSC), the President has appointed Justices of Appeal for short terms to deal with backlog of cases.”

Harmon added that while the Leader of the Opposition rejected the nominations for the two posts, no explanations were provided to the Government or the Guyanese society for his disapproval. Harmon noted however, that when the President had rejected the nominations for the Guyana Elections Commission (GECOM), the Bar Association was one of the many organisations, which voiced their discontent and called for explanations to be given.

“I don’t know what would have motivated them to take this position because the last consultation that was held between the Leader of the Opposition and the President, the Leader of the Opposition took a position that he was not in support of the nomination and he chose to give no reasons. Now when His Excellency, the President had to deal with the appointment of the Chairman of GECOM and the nominations by the Leader of the Opposition, he basically said that he did not give reasons for his decision because it is a small country and personalities and characters can be damaged in a certain way. The Bar Association was among many that criticised the President on that and actually went to Court to get a ruling that the President must give reasons. Now Mr. Jagdeo has taken this same position and they make no statement about it. It is saying to me that the Bar Association is going down a very dangerous line. People should not be afraid that the President will act arbitrarily. The President will never act arbitrarily,” Harmon said.
The release last night said that the GBA’s statement, which can be interpreted as premature and potentially misleading follows closely on the heels of a repeated commitment by the Head of State to uphold the tenets of the Constitution.

“The Ministry of the Presidency uses this opportunity to assure the GBA and all Guyanese that this administration remains committed to upholding the Constitution of Guyana. Any suggestion that it is not or intends to do otherwise is not based in fact nor is there any evidence to suggest that this ominous warning from the GBA, which has to potential to create unwarranted fear, was required”, the release added.

EARLIER STORY PUBLISHED BY THE STABROEK NEWS:

Bar Association Warns Against Unconstitutional Appointments of Chancellor and Chief Justice

GEORGETOWN, GUYANA — The Guyana Bar Association (GBA) has 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 on Monday, 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. – (COURTESY: STABROEKNEWS.COM)

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