The Report of the Constitutional Reform Commission (CRC) dated July 17, 1997, recommended at clause 9.9.3.4. that the Chancellor and Chief Justice should be appointed through a ‘consensual mechanism.’ Both the Independence and the Burnham Constitutions had provided that for certain appointments, including the Chancellor (after the Court of Appeal and the post of Chancellor was created in 1970) and Chief Justice, the Head of Government must ‘consult’ with the Leader of the Opposition. As everyone knows, these ‘consultations’ became a perfunctory farce during Burnham’s time in office but was somewhat mitigated during Hoyte’s tenure.
By the time the CRC was deliberating in 1999, the situation in relation to consultation had changed. The PPP/C had been in Government since 1992, and had begun to observe the provisions of the Constitution relating to consultation with the Opposition. However, during the deliberations in the CRC, members felt that in order to prevent a situation such as existed during the PNC’s terms of office from recurring, it was necessary to strengthen the language, and thereby the practice, about consultation. Thus wherever consultation was provided for in the Constitution, the word ‘meaningful’ was added so that the requirement became ‘meaningful consultation.’
Because of the importance of the positions of Chancellor and Chief Justice as heads of the Judiciary, and to strengthen its independence and the confidence of the population in it, which had been severely degraded in the past, the CRC felt that a higher level of ‘meaningful consultation’ should be established which could potentially lead to a consensus on the persons to be appointed to these positions. The CRC did not believe that there should be a constitutional requirement for consensus because this would have led to gridlock, as we have now seen. If the CRC had believed that there should be consensus, it would have so recommended. It did not. It did the next best thing. It recommended that a mechanism, called a ‘consensual mechanism,’ be agreed between the Government and Opposition during the drafting process which, whenever activated, would have the possibility to lead to a consensus between the President and the Leader of the Opposition.
The CRC could only made recommendations for constitutional reform because the time was not available to it to draft the actual recommendations.
After the recommendations were unanimously approved, an Oversight Committee was established by the National Assembly to prepare the legislation to give effect to the recommendations. Some but not all members of the CRC, together with Members of Parliament, were members of the Oversight Committee. Mr. Moses Nagamootoo, who was not a member of the CRC, but a Member of Parliament, chaired the Oversight Committee. I was a Member of Parliament but was forced to decline membership of the Oversight Committee because of accusations that I had made too many concessions to the Opposition during the CRC process, even though the Government’s team was not led by me. As Chair of the CRC I took little or no part in the debates but only managed the proceedings. The PPP’s team was led by the late Reepu Daman Persaud.
I was completely astonished when I learnt that the PPP members of the Oversight Committee had agreed that “the Chancellor and Chief Justice shall each be appointed by the President, acting after obtaining the agreement of the Leader of the Opposition.” (Article 127(1) of the Constitution. No information ever emerged from the PPP members of the Oversight Committee, even internally, about who among them advised on this devastating concession or how it was extracted from them. The Executive Committee of the Party was presented with a fait accompli, unlike all the other reforms recommended by the CRC which were approved beforehand. The result is, as was to be expected, gridlock over the appointments, persisting for many years. It is hardly likely that this situation will change.
No lawyer in any case in Guyana has objected to the Chancellor (ag) or Chief Justice (ag) sitting in a case involving the Government of bias or the appearance of bias, because of their acting appointments. Such objections have been made in the past against other Judges. Nevertheless, having regard to the legal position which has developed about the appearance of bias by acting Judges in such cases, it could possibly be only a matter of time before this issue is again raised against one or both of our leading judicial officials, who happen to be our most experienced judges. If this ever occurs a severe crisis will arise in connection with the discharge of judicial duties and responsibilities.
While the two top Judges are not the only ones available to hear cases, whether or not involving the Government, the legal profession and the public at large expect and look forward that the country’s leading judges will preside over the most important constitutional and public law cases, some of which involve highly complex legal issues.
While great strides have been made in the administration of justice, much more remains to be done. But this uncertainty is holding back further reforms, creating a negative impact which pervades the system and is challenging the integrity of the judiciary.