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THE IMPASSE ON JUDICIAL APPOINTMENTS: Is the resolution in law or politics?

By: Mohabir Anil Nandlall, MP

Attorney-at-Law

 

 

Article 127 (1) of the Constitution has featured in the news recently. It provides as follows: “The Chancellor and the Chief Justice shall each be appointed by the President, acting after obtaining the agreement of the Leader of the Opposition.” This provision originated from the constitutional reform process 1999-2001. It was one of the nearly two hundred constitutional amendments unanimously enacted during that period. The precursor position which existed in the 1980 Constitution, empowered the President to make those appointments “after consultation with the Minority Leader”. The requirement of “consultation” has now been replaced by “agreement”.

It is common knowledge that since this constitutional amendment was enacted, no agreement was ever reached between the President and the Leader of the Opposition, in respect of the appointment of a Chancellor and Chief Justice. However, it was not that they were a paucity of efforts in this direction. The elevation of Chancellor Desire Bernard to the Caribbean Court of Justice first precipitated those engagements. They produced no agreement. As a result, the alternative position had to be invoked. One must credit those who were part of the constitutional reform process for their foresight. They were wise and prophetic enough to recognize the strong possibility of a non-agreement. To avoid a constitutional vacuum and consequent crisis, they crafted Article 127 (2). It reads thus:

If the office of Chancellor or the Chief Justice is vacant or if the person holding the office of the Chancellor is performing the functions of the Office of President or is for any other reason unable to perform the functions of his or her office, or if the person holding the office of Chief Justice is for any reason, unable to perform the functions of his or her office, then, until a person has been appointed to and has assumed the functions of such office, or until the person holding such office has resumed those functions, as they case may be, those functions shall be performed by such other judges as shall be appointed by the President after meaningful consultations with the Leader of the Opposition.” 

It is this provision that has virtually saved the day. It has been utilized since, to avoid a critical vacuum and invoked in order to effectuate acting appointments, thereby averting a real constitutional crisis.

Withholding agreement 

Several engagements between former President, Bharrat Jagdeo and Leader of the Opposition, Mr. Robert Corbin, on this issue proved futile. I recall that for a greater part of those engagements, President Jagdeo’s position was a preparedness to confirm the incumbents in office, Mr. Justice Carl Singh, who was acting as Chancellor and Mr. Justice Ian Chang, who was acting as Chief Justice. These propositions failed to meet with the agreement of the then Leader of the Opposition. As far as I am aware, during that period and indeed until they both departed the Bench, neither their competence nor suitability to hold those offices were ever publicly questioned. Yet, an agreement to appoint them, substantively, proved elusive.

When Mr. Donald Ramotar and Mr. David Granger assumed office as President and Opposition Leader, respectively, the engagements continued. President Ramotar continued to adopt the position of his predecessor to confirm the incumbents. Like his predecessor, Mr. Granger withheld his agreement. As Attorney General, I had the privilege of being present at most of those engagements. I recall, through the President, requesting of the then Leader of the Opposition, to assemble in writing, the reasons for his objections to the President’s position, since it was agreed by both sides that the incumbents at that time, had both demonstrated their competence and indeed, had accumulated a track record of success, as actors in those positions. The provision of reasons, therefore, by the Leader of the Opposition, for withholding his agreement, would have been most edifying for us in the Government as well as the public. Unfortunately, no such reasons came forth.

Upon the exit of Mr. Justice Carl Singh and Mr. Justice Ian Chang, they were replaced by two new actors.  However, and I would dare say strangely, the President did not attempt to secure the agreement of the Leader of the Opposition before making those two appointments. Rather, he chose to invoke Article 127 (2) of the Constitution as a first option, thereby ignoring Article 127 (1). Why the President would not want to seek agreement to confirm the current holders in office, I would leave open to your own inferences. To date, no such attempt has been made. 

President of the CCJ 

It is against that historical backdrop that the President of the Caribbean Court of Justice, Sir Dennis Byron, delivering the feature address the Annual Dinner of the Guyana Bar Association on November 11, 2017, at the Pegasus Hotel in Georgetown, offered his lamentations about these successive acting appointments and the failure to arrive at an agreement between the President and Opposition Leader.

The learned President of CCJ views this state of affairs as debilitating to judicial independence and a violation of the letter and spirit of the Constitution. His Honour posits: “This situation has moved well beyond what ought to be acceptable in a modern democracy where respect for the rule of law is maintained. The Constitution envisages the judiciary of Guyana to be headed by officials who are substantively appointed and enjoy all the legal and institutional mechanisms to secure their tenure. Anything otherwise is, to my mind, a violation of the spirit and intent of the Constitution.”With these sentiments, I stand in full agreement.

 

The distinguished jurist then makes this fundamental point: “The delay in complying with Article 127 (1) of the Constitution, has long reached a level of justiciability and the most appropriate authority for resolving the situation is the court system.”

The Pakistani Constitution 

I will readily concede that Article 127 (1), both in its letter and spirit, cast a mandatory obligation on both the President and Leader of the Opposition to come to an agreement. A lawful agreement by its very nature, requires a voluntary meeting of the minds of its parties. No Court, or indeed, any other entity, can lawfully coerce or compel two or more persons to arrive at an agreement on any given matter. A distinction must be drawn here between arriving at an agreement and compelling a party to discharge obligations under an extant agreement. A Court can compel the latter but not the former. Therefore, apart from declaring that Article 127 (1) has been violated by the failure of the President and the Opposition Leader to arrive at an agreement, a Court can do no more. Any attempt to do more, would find the Judiciary trespassing wthin the province of the Executive in abrogation of the doctrine of Separation of Powers.

The framers of the Constitution clearly, squarely and exclusively placed an obligation on the President and the Leader of the Opposition to arrive at agreement on this matter. No Court can lawfully substitute itself for those two decision makers. There is a legion of case law authorities adumbrating the principle that a Court cannot substitute itself and make a decision for any authority or person with whom Parliament has vested that responsibility. I am at loss, therefore, in deciphering how, “the most appropriate authority for resolving the situation is the Court system” [as per Justice Byron]. In my humble view, the most that a Court can do is, possibly, fix a timeframe within which such an agreement should be concluded. If that fails, then we enter uncharted waters. It is inconceivable that the Court would or can make an order beyond that. In my view, the doctrine of necessity does not arise. The framers of the Constitution made provisions in 127 (2) for the eventuality of a non-agreement. It is only if 127 (2) was absent then that doctrine could have been invoked.

In the circumstances, I do not share the view that a resolution of this issue lies in the Courts or in the law. It lies in politics. I remain conscious of the fact that the position I adopt now, that is, that there is no judicial rectification for a constitutional violation constitutes a paradigm shift from my usual position on these matters. However, it must be recognized that this is a highly unusual constitutional provision under review. In fact, as far as I am aware, it has only one counterpart in the modern world: the Pakistani Constitution. Like in Guyana, the agreement has eluded the politicians of Pakistan for almost two decades.

Author: Joe Public
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