During last week the Attorney General and Minister of Legal Affairs, the Honourable Basil Williams, reminded us that the current Chief Justice (ag) Ian Chang is due to retire shortly. According to the Constitution, the acting Chief Justice is required to retire next February but with pre-retirement leave, if taken (he has reportedly never taken leave in fifteen years) he might leave as early as the end of this year.
Chief Justice Chang is like no other judge before or, likely, after. He combines a burning passion for law with a voracious reading appetite. These have gifted him with wide knowledge and sharp and innovative analytical capability. With an easy and approachable manner, the Chief Justice combines a gregarious disposition with uniquely expressive skills. His ripe and colourful images and metaphors in speech, disguise a prodigious work ethic. His countless, usually well written decisions, will guide lawyers and judges for many years to come. Some decisions have been reversed, some controversial, as is normal and to be expected. The lawyers defending his decisions in the Budget Case and the Two Term Presidential Limit Case will have challenging arguments to contend with.
When Chief Justice (ag) Chang retires a vacancy arises for a Court of Appeal Judge, not Chief Justice, because his substantive position is that of Justice of the Court of Appeal. The acting Chancellor, the Hon. Carl Singh, is the substantive Chief Justice. When, therefore, Chief Justice (ag) Chang retires the President has two options, namely, to require the acting Chancellor to resume his substantive post as Chief Justice and appoint a Chancellor or, appoint a Chief Justice.
In adopting the first option of appointing a Chancellor, the President will face a substantial difficulty. There is no one in Guyana, in the private bar who would be age qualified and willing, or in the judiciary, who is currently qualified, save for the two judges of the Court of Appeal. Even though both are experienced and distinguished judges, the issue of seniority will arise for consideration, as Chancellor (ag) Carl Singh is senior to them both and has already established a track record in Guyana and the Region. Lack of seniority is not an obstacle to the appointment as Chancellor of a person other than Carl Singh. However, in the circumstances where he has been acting for several years in the post and has the track record described above, it would be a highly unusual step, the nature of which has never occurred in our judiciary.
The only event that might bear some resemblance, but with material differences, was the 1966 bypassing by the Burnham government of Sir Joseph Luckhoo, the Chief Justice and then head of the judiciary and the appointment of Sir Kenneth Stoby, the Guyanese Chief Justice of Barbados, to the newly created post of Chancellor of the Judiciary and president of the newly created Court of Appeal. Sir Joseph Luckhoo resigned and later served as President of the Court of Appeal of Jamaica and in other high judicial positions in the Caribbean. Although this event has faded into the past, the administration should take notice and quietly set aside the bad idea of advertising in the Caribbean region for candidates to fill vacant judicial posts in Guyana where there are qualified Guyanese at home.
The second option is to appoint a person to the post of Chief Justice and leave the acting Chancellor in situ. It may well be that this was the option that the Attorney General was hinting at when he spoke. He referred to the appointment of a Chief Justice and that he had discussed it with the President. If this is the option, the candidates who immediately come to mind are the judges of the Court of Appeal, referred to above, both of whom are eminently qualified. If handled correctly the exercise of this option can set the course of the judiciary on a stable trajectory for the next fifteen years.
The second option also creates the possibility that the more than decade long impasse with the confirmation of the appointments of Chancellor and Chief Justice will be eventually resolved. The Constitution requires the agreement of the Leader of the Opposition to these appointments. Former Opposition Leaders, Desmond Hoyte and President Granger, have declined to give their consent to the confirmation of Ian Chang and Carl Singh. The result is that they had to be appointed to acting positions where only consultation with, and not the consent of, the Opposition Leader, is required. This state of affairs is widely recognized as being bad for justice and can adversely affect its impartial dispensation. Notwithstanding this unwholesome situation, this issue remains unresolved.
If the President chooses this option he will obviously be recommending someone in whom he has confidence and whose appointment he would want to be confirmed by the consent of the Leader of the Opposition. An opportunity therefore exists for the Leader of the Opposition to take the high road and consent to the President’s nominee, once the nominee is qualified, as I have no doubt he or she will be. If the Leader of the Opposition does so, the President should likewise bring to an end the sorry state of affairs where Guyana has had an acting Chancellor for more than a decade and confirm his appointment.