The recent consultation process between President Ali and Opposition Leader Norton commenced on May 13 and was adjourned for the President to provide the CVs of the nominees. Mr. Norton also requested the grounds on which the nominees were selected. The President indicated that the meeting will be reconvened within a week. But it was not until May 27 that Mr. Norton was invited to a meeting with the President on May 30. Mr. Norton did not reply and did not attend the meeting. President Ali proceeded to make the appointments.
Mr. Norton explained to the public that he had other commitments on May 30, but that in any event, President Ali had violated his promise to meet within a week and did not supply the grounds for the nominations that he had requested. Mr. Norton did not explain his reason for not replying to the letter of invitation of May 27 but accused President Ali of being disrespectful in not convening the meeting within a week as he had promised.
Article 232 of the Constitution defines ‘consultation’ or ‘meaningful consultation’ as meaning that the person seeking consultation shall specify the subject of the consultation and the intended date of the decision; afford a reasonable opportunity to express a considered opinion; cause to be prepared and archived a written record of the consultation. The single definition of both terms suggests that they mean the same thing.
In the case of Mustapha v AG and Chairman of the Guyana Elections Commission the CCJ, consultation was touched on but added nothing to existing law. Court decisions in the UK have concluded that ‘fairness’ is the basis of consultation. The elements of fairness were advanced by the then Stephen Sedley Q.C. (later Lord Justice of Appeal Sir Stephen Sedley Q.C., now retired, who visited Guyana in 2015), in a case in which he appeared as counsel in 1985 (R v Brent LBC ex p. Gunning 1985 84 LGR 168). These elements later became known as the ‘Sedley principles on consultation’ and were upheld in several later cases in the UK Court of Appeal. The ‘Sedley principles on consultation’ are: (i) the consultation must be at a time when proposals are still at a formative stage; (ii) the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response; (iii) adequate time must be given for consideration and response; (iv) the product of consultation is conscientiously taken into account when finalizing the decision.
One year later, Justice Webster had the following to say in the case of Reg. v Social Services Secretary Ex. p. A. M. A. (1986) 1 WLR 1 at page 4: “But in any context the essence of consultation is the communication of a genuine invitation to give advice and a genuine receipt of that advice. In my view it must go without saying that to achieve consultation sufficient information must be supplied by the consulting party to the consulted party to enable it to tender helpful advice. Sufficient time must be given by the consulting to the consulted party to enable it to do that, and sufficient time must be available for such advice to be considered by the consulting party”
In 2014 the UK Supreme Court added a new dimension to ‘fairness’ in the case of R (Moseley) v Haringey LBC (2014) 1 WLR 394.The Moseley case endorsed the Sedley principles but added that the consultation must include not only the proposals that were considered and accepted, but also those that were considered and rejected and the reasons for the rejection.
It is by now well known that in most cases ‘meaningful consultation’ replaced ‘consultation’ in the Constitution because consultation had become a formality without substance and not seriously observed by PNC heads of government. The objective was to ensure that consultation was a meaningful process.
If legal proceedings are instituted by Mr. Norton the court may be required to determine whether Mr. Norton was justified in not responding to the President’s invitation and if the President, having received no response from Mr. Norton, was entitled to proceed with the appointments. If this question is answered in the affirmative, this will bring an end to the court proceedings.
If this hurdle is overcome by Mr. Norton, the court will then have to decide whether Mr. Norton’s request for the grounds by the President for recommending the nominees constitutes information to which he is entitled under the principles of ‘sufficient reasons for any proposal’ and ‘sufficient information’ ‘to achieve consultation’ as defined in the above cases. Mr. Norton is asking the President: “Why are you recommending these persons?” Is this unreasonable?
This issue was first addressed in an article written in January 2016. (This is an amended version adapted to present circumstances). President Granger had declined to accede to the request of Opposition Leader Jagdeo for a report by the Judicial Service Commission on his nominee for the post of acting Chief Justice on the ground that his nomination was for an acting position. The Constitution required then and requires now ‘meaningful consultation’ on the appointment of an acting chief justice. Legal proceedings were not taken.