CONFIRM THE APPOINTMENTS OF THE CHANCELLOR AND CHIEF JUSTICE NOW
I have posted two articles in the past calling for the confirmation of the acting appointments of the Chancellor and Chief Justice. That was a time when the Government did not favour the holder of at least one of the acting appointees. I was in good company. In an earlier era, when the acting appointees were not favoured by the Opposition, two former Presidents of the CCJ called publicly for the confirmation of their positions. They pointed to the serious consequences for the judiciary, namely, the strong possibility that the independence of the judiciary would be undermined. However, political considerations took precedence over the harm being done to the judiciary and the rule of law.
As is well known, the gridlock was created when the Oversight Committee on Constitutional Reform, on which the PPP/C had a majority, interpreted the recommendation by the Constitution Reform Commission (CRC) for a “consensual mechanism” to determine the Chancellor and Chief Justice to mean “consensus” between the President and Leader of the Opposition. It did not. It meant the establishment of a “mechanism” that would have been likely to lead to a “consensus”. Because of time constraints, the CRC did not have the possibility of devising and recommending the “mechanism”. It is astonishing that the PPP and its senior leaders who were members of the Oversight Committee at that time did not consider that gridlock would be the consequence of such a concession to the Opposition.
The exchange between Kamal Ramkarran and Terrene Campbell in the Kiskadee Watch last week suggests that there is a way out. In a letter on the 15 August, Ramkarran wrote: “The Leader of the Opposition has only a limited and circumscribed power in the decision to choose a Chancellor and Chief Justice. He or she only has the power to refuse to proffer agreement. That refusal cannot be irrational. It must be based on some objective fact which entitles him or her to refuse to agree to a reasonable proposal for the appointment of Chancellor and Chief Justice.”
Campbell responded as follows: “It is the first time that I am hearing such an interpretation. Article 127 (1) of the Guyana Constitution is clear on the need for the agreement of the Leader of the Opposition and it sets no conditions on that agreement. This language was deliberately chosen to separate this clause from others which call for “consultation” or “meaningful consultation”.
Ramkarran responded by citing several cases: No power conferred for public purposes, like the power under consideration, is conferred absolutely. In Porter v Magill, decided by the House of Lords of the United Kingdom in 2001, it was held that such a power is conferred on trust and must only be used in the right and proper way intended by Parliament.” He cites R (Miller) v Prime Minister (No 2), decided by the United Kingdom Supreme Court in 2019, in which the decision of the Prime Minister to advise the Queen to prorogue Parliament was challenged. The Court unanimously held that “…every prerogative power has its limits, and it is the function of the court to determine, when necessary, where they lie”.
Finally, there is the Guyana case of Mustapha v Attorney General of Guyana, also decided in 2019, President Granger’s decision to reject three lists of candidates successively given to him by the Leader of the Opposition and then to unilaterally appoint a Chairman of the Elections Commission. The CCJ held that “[t]he President should only find a nominee unacceptable for some good reason on objective grounds”. It continued, “[i]f a President were permitted, capriciously or whimsically, without proffering a good reason, to reject eligible nominees, this would frustrate the proper working of the Constitution…” The words “good reason” and “objective grounds” do not appear in Article 161(2), but the Court nevertheless found that the concepts were implied into the Constitution on a proper reading.
These arguments would lend credibility to any suggestion that the Government should grasp the opportunity now, as it should have done long ago, to test objection of the Leader of the Opposition, without any, or any credible, objection to the appointment to the Chancellor and Chief Justice. The Government’s advisors are aware of these legal principles but may have not been successful in persuading the Government to act. Now is the time for an extra effort.
To make it a success, the Government would need to make to the Leader of the Opposition the proposal in writing, specifying a response time. If there is no response by way of acceptance, refusal, counter proposal, or request for information, the Government may opt to invite the Leader of the Opposition for discussions on the matter or give extra time. If this process elicits no response, the Government should proceed with the appointments and defend a case which is likely to be filed by the Leader of the Opposition.
From all appearances, the Government is unwilling to approach the Leader of the Opposition for anything. This is a shortsighted approach to governance. The nation’s business soars in importance in relation to the personal or political differences that appear to be in play. The Government needs to take the bull by the horns and fix the judiciary that has been languishing for 25 years. It has nothing to lose.
