Forde and Nandlall differ on timeline for President to appoint Chancellor, Chief Justice

Justice Damone Younge last Wednesday heard oral arguments by Mr. Roysdale Forde SC, and Mr. Anil Nandall SC, on the substantive appointments of Chancellor and Chief Justice. Forde, who is representing applicant Mr. Vinceroy Jordan, is asking the High Court to direct President Irfaan Ali to uphold Article 127 in the Constitution of Guyana by initiating consultation with the Leader of the Opposition, Mr. Aubrey Norton, within two months.

The Senior Counsel is also asking the Court to declare that since assuming Office, the President has failed to engage the Leader of the Opposition on the appointments in accordance with Article 127 of the Constitution.

Article 127(1) stipulates “the Chancellor and the Chief Justice shall each be appointed by the President, acting after obtaining the agreement of the Leader of the Opposition.”

Forde told the Court the refusal of the President to “honour his obligation under Article 127 of the Constitution,” has nothing to do with issues of non-recognition of the government and the shaking of hands which are “completely irrelevant in relation to [compliance with the law].” Ali did state  engagement with the Opposition Leader is contingent on the Opposition-the A Partnership of National Unity and Alliance For Change (APNU+AFC)- recognising his government.  The handshake is a running issue between Ali and Norton about who should shake hands and why hands won’t be shaken.

The Court was told it has been more than two years since Ali’s presidency and a letter (dated May 12, 2022) was dispatched to him by Norton, calling for advancing the process of appointing a Chancellor and  Chief Justice, and Norton had indicated his willingness to support the confirmation of acting Chancellor Yonette Cummings-Edwards and acting Chief Justice Roxane George-Wiltshire SC, but the President has not responded.

Nandlall, who is the respondent in the case, whilst acknowledging the non-appointments told the court that whereas the matter is a constitutional issue, the Constitution has set no timeframe for the appointments, and the President is not so “bound; neither is there dependent on any antecedent occurrence to trigger that appointment.”

“The only conditionality that affects the power of the President to appoint, but it is a fundamental conditionality, is that he cannot exercise that power without an agreement from the Opposition,” Nandlall told the court.

The non-appointment of a substantive Chancellor and Chief Justice has attracted attention not only in Guyana but across the region. President of the Caribbean Court of Justice, Adrian Sanders, had called for these appointments before the end of 2022.

Keynote speaker at the Guyana Bar Association Dinner, April 9, 2022, Sanders said “I believe I have a right and a duty publicly to express the view that Guyana should not let this year [2022] pass and not remedy this regrettable situation.”

Further, Sanders pointed out that “for the country to have not appointed a Chancellor for 17 long years is very disappointing; likewise, to be without an appointed Chief Justice for several years.”

Since 2005 there has been no substantive appointment of Chancellor nor Chief Justice. However, Nandlall told the Court the President will engage the Leader of the Opposition on these appointments at an appropriate time.

The incumbent Justice Cummings-Edwards was appointed acting Chancellor in 2016 and Justice Roxanne George-Wiltshire SC acting Chief Justice in 2017.

Justice Younge is expected to hand down the Court’s decision in March.