Former French President Nicolas Sarkozy was recently convicted of corruption for attempting to bribe a judge and influence-peddle in exchange for confidential information relating to an investigation into his campaign finances in 2007. He was sentenced to three years in prison . However, two years is suspended, while the presiding judge agreed to allow him to be tagged with an electronic bracelet outside the jail for the remaining year. Mr Sarkozy had 10 days to appeal the ruling. Last year, another world leader, Israeli Prime Minister Benjamin Netanyahu, was indicted for fraud, breach of trust and receiving bribes in three separate cases. There have been calls for his resignation as a result of these allegations as well as his government’s response to the COVID-19 pandemic. Mr Netanyahu had denied any wrongdoing. The case is still pending.
Last Wednesday, Opposition Leader Joseph Harmon called on President Irfaan Ali to confirm Justices Yonette Cummings-Edwards and Roxane George-Wiltshire in the posts of Chancellor of the Judiciary and Chief Justice, respectively. He said their affirmation was necessary and ‘that’s how they will be able to stand firm … Keeping people in acting jobs is a way of managing people’. Both judges have been operating in these positions since March 2017.
Since the retirement of Mde. In Justice Desiree Bernard in 2005, Guyana has been without the services of a significant Chancellor and Chief Justice. Justice Carl Singh served as Chancellor for 12 years until his retirement in 2017. At one point, he held the posts of Chief Justice and Chancellor at the same time. When a judicial review was sought in 2007 in relation to this matter, Justice Ramlal ruled that a person could not hold both posts at the same time; and the undue delay in the appointment of a significant Chancellor made the appointment of Justice Singh to act as Chancellor unconstitutional. The late Justice Ian Chang also acted as Chief Justice for over ten years until his retirement in 2016. Both gentlemen would have retired in their substantive positions and would therefore not have received pension benefits commensurate with their acting roles. , which is very unfortunate.
Constitutional provisions
Unlike other judges appointed by the President on the advice of the Judicial Service Commission, the Chancellor and the Chief Justice are appointed by the President upon the agreement of the Leader of the Opposition, as required by Article 127 (1) of the Constitution. However, in the case of a temporary appointment in respect of these two posts, the President is required to consult meaningfully with the Leader of the Opposition. Once that consultation takes place, the temporary appointment will be made until the post is filled by substantive appointment, or the substantive holder resumes the post, as the case may be.
That is, while a substantive appointment cannot be made without the agreement of the Leader of the Opposition, this is not mandatory once the Leader of the Opposition is consulted. However, the words “meaningful consultation” would at least imply that an objection from the Leader of the Opposition would not be inappropriate. In the case of the current incumbents – Acting Chancellor Justice Cummings-Edwards and Acting Chief Justice and George-Wiltshire – such consultations were undertaken prior to their appointment in March 2017.
We may also refer to Article 122A (1) which states that ‘every court and every person presiding over the courts shall exercise their functions independently of the control and direction of any person or authority; and shall be free and independent of political, executive and other direction and control ‘. This clearly suggests that there should not be protracted acting appointments in the Judiciary.
The unreliability of having protracted acting appointments
From a good governance perspective, long acting appointments are generally undesirable practice which can adversely affect the ability of officers involved in discharging their responsibilities impartially and in accordance with their training and professional experience. This is particularly the case, given that they are dependent on those in authority to continue their temporary appointments and in the hope that they will be made substantially at some point.
I remember my own case in 1985 when I was appointed Chief Accountant at the Mahaica Development Authority, Mahaicony, Abary-Agricultural (MMA / ADA). Two weeks later, I was forced to act as Manager (Finance) because the previous post holder had resigned. Within a month or two, I was drastically appointed to the job. The Chairman of the MMA-ADA Board was the late President Desmond Hoyte in his capacity as Prime Minister responsible for agriculture. Other notable Board members were: TA Earle – Commissioner for Lands and Surveys; the late Raymond Latchmansingh – Chief Hydraulics Officer; the late Clyde Roopchand – Chief Planning Officer) and John Browman – Permanent Secretary of the Ministry of Agriculture.
In 1987, I joined the Audit Office as Deputy Auditor General. Three years later when the late Auditor General Pat Farnum went on pre-retirement leave, I had been in post for three months and subsequently confirmed Mr Hoyte in his capacity as President in office. The date was 31 December 1990. The other constitutional holders brought in on the same day were the late Laurie Lewis as Police Commissioner; and Brigadier Joe Singh as Chief of Staff of the Guyana Defense Force. Former President David Granger in his capacity as National Security Adviser was present.
After I stood down at the end of 2004, the current Auditor General operated for seven years. Were it not for the fact that he would have reached the age of 55 in his substantive post, he might have continued to function in the job. The Auditor General had indicated that he could continue in his temporary appointment until he reached the Auditor General’s retirement age of 65. When it was noted that this was not possible, former President Donald Ramotar promptly appointed him to the post. This appeared to have prevented the possibility of an application for judicial review in relation to the Auditor General’s continuing appointment. There were also questions about his qualifications for this important constitutional position which equates to that of Chief Justice in terms of earnings and other conditions of service. Unlike the case of judges, the Constitution does not provide for eligibility requirements for the Auditor General. The draft Audit Act 2004 included such requirements but unfortunately, for whatever reason, they were not reflected in the final legislation.
The point we want to make here is that a temporary appointment should be no longer than six months which is sufficient time to assess the individual’s performance and decide whether to confirm it on the job. This was the founding practice at the time. Unfortunately, in later years, this practice was put aside in some cases perhaps because of a desire to exercise control and to get officers involved to ‘walk the line’. Professor Arif Bulkan claimed that temporary appointments for long periods were generally ‘impracticable for fearless, independent performance’ and placed the officer ‘in a state of constant test, and demanded strength of character to rule fearlessly’ .
Concerns raised in relation to protracted acting appointments
In response to Mr. Harmon, the Guyana Bar Association (GBA) noted that the continued delay in appointing the Chancellor and Chief Justice was significant evidence of the need for a new selection process that would remove politics and politicians from the process. . The GBA claimed that it was painful for the Judiciary to be used as political games contrary to the doctrine of separation of powers; and acting jobs are ‘impractical to the functioning of the justice system’.
At the 37th Annual Bar Dinner held in November 2017, the President of the Caribbean Court of Justice (CCJ), Justice Dennis Byron, expressed disappointment that successive Presidents and Opposition Leaders have been unable to agree on the significant appointment of a Chancellor who considered a very unfortunate condition. Justice Byron further noted that prolonged acting appointments pose a real risk to the promise to citizens of an independent and impartial judiciary:
With the passage of 12 years the unpleasantness of further delays could no longer be controversial. This is a very serious issue because there needs to be strong leadership to tackle the problems of delay and all other issues that need reform. It is quite obvious that a leader who is not appointed is at a disadvantage, and there is a need to accept criticism from the sector knowing the impediment placed on the leadership of the organization, which the Constitution is particularly frowned upon.
This situation has moved well beyond what should be acceptable in a modern democracy where the rule of law is maintained. The Constitution envisages that the Guyana judiciary will be led by substantively appointed officials who enjoy all legal and institutional mechanisms to secure their tenure. Anything else, in my opinion, is contrary to the spirit and intent of the Constitution
The current President of the CCJ, Justice Adrian Saunders, added his voice by stating that the failure to make substantive judicial appointments was a significant strain on the rule of law. And at its sixth biennial conference held in Belize in October – November 2019, the Caribbean Association of Judicial Officers noted that the failure to confirm candidates for the two main judicial roles went against the establishment of the trust and confidence of the public in the Court system.
Tip for unlocking the grid lock
Since 2005, at least two attempts have been made to fill the posts of Chancellor and Chief Justice. However, in each case the nominees did not find favor with the then Opposition Leaders. Now that the current Leader has signaled his support for Cummings-Edwards and George-Wiltshire Magistrates, an opportunity has now presented itself to solve the 16 year old grid clock.
There is no doubt that these two judges have performed with excellence in maintaining the rule of law, especially during the difficult period of the 21 December 2018 vote of lack of confidence in Government to swear the new President on 2 August 2020. It is during this time several judicial reviews were sought challenging the validity of the no confidence vote as well as the constitutionality and legality of the recounting Order; and to prevent GECOM from declaring the results on the recount.
In his Conversation Tree column on 23 December 2017, the former National Assembly Spokesperson had the following to say about these two distinguished judges:
I can say with certainty that the expected performances of the Chancellor (ag) and Chief Justice (ag) exceeded expectations amid huge challenges, which had begun under Carl Singh’s chancery, and above all the implementation of Civil Procedure new. Rules, the establishment of courts and new jurisdictions for family and sexual offenses, the appointment of additional judges and a building program to house courts, magistrates and judges. I believe that this view is shared by the legal profession.
We urge the President and Leader of the Opposition to meet as soon as possible and agree to the significant appointment of Magistrates Cummings-Edwards and George-Wiltshire to the posts of Chancellor and Chief Justice respectively. These two critics deserve nothing less.