Every appointment is based on a system

Dec 13, 2015 Features / Columnists, Peeping Tom

There is no constitutional position or appointment known as the acting Chief Justice. Therefore there could not have been any consultations, meaningful or otherwise, between the President and the Leader of the Opposition on the appointment of an acting Chief Justice. There is no such position known under our constitution; it is an administrative creation.
The Constitution of Guyana provides for someone to perform the functions of Chief Justice until such time as a substantive appointment is made. There is already a substantive appointment to the position of Chief Justice, but that person has been for the longest while performing the functions of Chancellor.
There is therefore need for someone to perform the functions of Chief Justice, and seeing that the person previously performing those functions is about to be retired, having not been confirmed because of the failure of the President and the Leader of the Opposition to reach agreement on this, there is need for someone new to be appointed.
It is important to clarify these things, because of the recent nonsensical statements made by the government side about there being no provisions in the Constitution for consideration of seniority and performance in the appointment of persons to perform the functions of Chief Justice.
The Constitution speaks about consultations. It is not unusual during the course of such consultations for criteria to be established for determining appointments. There must be some criteria for appointments.
Consultations do not involve names being pulled from a hat. When a name is proposed, that name emerges from a process involving consideration of certain criteria. Not to say that the Constitution does not speak to considerations of a system for determining who should perform the functions of Chief Justice is sheer nonsense, and should be dismissed as such.
The present administration should be ashamed to be making such suggestions. Who was it that during previous consultations introduced the notion that the positions should be advertised? Did this suggestion not amount to introducing a system for determining how such appointments are to be made?
The constitution speaks to meaningful consultation. In the course of these consultations, criteria can be introduced to determine such appointments and since the consultations are meaningful, any such suggestion can be whimsically dismissed or ignored. The legal definition of meaningful consultation is a product of local jurisprudence; it was determined in our Courts, and it calls for consideration and reasons for rejecting, accepting or proposing anything. Therefore the proposal for the introduction of a system involving seniority and performance does not have to be spelt out by the Constitution; it is an integral part of the process of consultations, meaningful or otherwise.
Has the most senior person been nominated to perform the duties of Chief Justice? I do not know. It is for the media to research when the various appointments were made? Was the best performing judge appointed? No one knows; it is not even clear if there is in place any system for such appointments.
Whoever is appointed to perform the functions of Chief Justice would have had to have been nominated based on some criteria. The name of the nominee would not have simply been pulled out of a hat.
It is ideal that such appointments are depoliticized and that a mechanism be found to break the deadlock when there is no agreement on substantive appointments. A system for doing so is required. This is why no one should dismiss the need for criteria to be used in determining such appointments. When the time comes for substantive appointment, will there be a need for persons to apply, or was this only a proposal of convenience which now has lost its relevance?
There is no controversy over the present process involving the nominee to perform the functions of Chief Justice. The Leader of the Opposition has said that he did not oppose the appointment. He also was not required to have his own nominee. He may have, but it is not mandatory that he did. He was merely being consulted, meaningfully – that is, he was supposed to be given reasons for the proposing the nominee and in turn could have offered reasons for approving or disapproving.
By the way, what were the reasons given by the President for proposing the nominee, and did these reasons not constitute a system for determining this process? Just asking!

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Every appointment is based on a system

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