The implementation of the process of consultation required of the President under Guyana’s Constitution has been one of the most controversial constitutional issues since Independence. During the later years of President Burnham’s rule, consultation had degenerated into a perfunctory telephone call to the then Leader of the Minority. After 1985 when President Hoyte assumed office, consultation improved but still consisted of only a meeting at which names were proposed for constitutional offices to which the Leader of the Minority was given the opportunity to accept or reject there and then. This pattern has continued until the present.
Consultation in the most basic circumstances, even in family matters, could never mean less than a process of discourse, an exchange of ideas, consideration by one partner of the views of the other, underlined by the possibility that the position which one or both partners held on entering the discussion could be changed. In matters of national importance under the Constitution, consultation was never allowed to reach even this modest threshold.
During the constitutional reform process of 1999-2000, the members of the Constitutional Reform Commission (CRC) made an effort to ensure that the process of consultation, a basic foundation of good governance, was constructive, allowing the Leader of the Opposition a real opportunity to make a contribution, as was intended. Thus the adjective ‘meaningful’ was added to ‘consultation.’ It was hoped that this would influence a more involved process.
In relation to acting appointments for Chancellor and Chief Justice, the Constitution Reform Commission (CRC) retained the requirement of consultation and, as in the other cases where consultation was provided for, recommended that ‘meaningful’ be added.
Case law in England, where we look for guidance if little or none is available locally or regionally, overwhelmingly establishes that consultation must be fair. The elements of fairness in consultation 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 later became known as the Sedley principles on consultation and were upheld in several later cases in the UK Court of Appeal. The principles 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 after the Sedley principles were proposed, 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.
During the consultation between President Granger and Leader of the Opposition, Mr. Bharrat Jagdeo, on the appointment of an acting Chief Justice which, as above stated, required ‘meaningful consultation.’ Press reports suggested that Mr. Jagdeo had asked for an assessment by the Judicial Service Commission of the performance of the President’s nominee based on some specific criteria. It was reported that President declined to give the information on the ground that the appointment was an acting one.
The appointment, even though an acting one, required ‘meaningful consultation.’ The nature and quality of the consultation between President Granger and Mr. Jagdeo, which were suggested by press reports, is a far cry from what it ought to have been on the basis of established legal authority. At minimum, under the Reg. v Social Service Secretary case, Mr. Jagdeo was entitled to the information he sought and time to consider it. By virtue of the Moseley case, he was entitled to be told if the President considered any other qualified nominee, and if not why not, and if he did, why did he reject him or her. In so far as these did not occur, the constitution was violated.
It is not known if any past president received or sought professional advice on consultation. If not, now is the time to do so and to bring the fifty year old, unconstitutional, method of presidential consultation, hitherto practiced by both parties, to an end.