Appointments of Chancellor, CJ must be governed by Article 127 – Bar Council

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…says Acting appointments have been exhausted

The BAR Council of the Guyana Bar Association has weighed in on the substantive appointments of Chancellor and Chief Justice (CJ), highlighting that any action taken outside the remit of Article 127 of the Constitution, which govern those appointments, will be “unconstitutional, void, of no legal effect and would have embarrassing consequences.”

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

Justice Kenneth Benjamin and current acting Chancellor Justice Yonette Cummings-Edwards

While Article 127 (2) states ” 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.”

According to the BAR council in a statement, Article 127(1) is clear in its meaning and effect that “the agreement of the Leader of the Opposition must be obtained for a substantive appointment of the Chancellor and Chief Justice.”

Moreover, the Council explained that Article 127(2) 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. It is only if any of the provisos in the said Article 127(2) occur can it be invoked once again, failing which, the acting appointments continue until a substantive appointment can be made under Article 127(1)” said the Council.

The BAR Association Council says that that the current climate surrounding the offices of the Chancellor and CJ will affect the public confidence in the legal system and is undermining the dignity of the offices and office holders.

As such the Council is calling for both “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 David Granger who nominated Justice Kenneth Benjamin and Justice Yonnette Cummings-Edwards- for the substantive posts of Chancellor and Chief Justice respectively, met with Opposition Leader Dr Bharrat Jagdeo on January 3, 2018 to discuss the appointments.

However, after doing his due diligence, Jagdeo earlier this month rejected the President’s nominees.

Jagdeo said that he remained cognizant of the fundamental importance of securing substantive appointments to these two high constitutional offices.

“As a result, I am committed to continuous engagement with your Excellency until there is due compliance with Article 127 (1) of the Constitution” he explained.

President David Granger on Wednesday last asserted however, that he is awaiting legal advice from his Legal Affairs Minister to move forward.

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