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Jimmy again!

Jan 25, 2017 Features / Columnists, Peeping Tom

By the time the APNU+AFC coalition demits office, it may end up rewriting constitutional law. We already have a raging debate taking place over the interpretation of the section of our Constitution dealing with the appointment of the Chairman of the Guyana Elections Commission.
The former Attorney General of Guyana, Anil Nandlall, by reference to the rules of interpretation used by our Courts and citing cases in support of his contention, has effectively demolished the argument that the phrase “or any other fit and proper person” is conjunctive.
What he has not done is to cite supporting cases to clarify the meaning of ‘fit and proper’. It is hereby respectfully contended that those who argue that the person to be appointed under the ‘fit and proper’ category must have judge-like qualities – whatever that means – are erroneous in their interpretation.
“Fit and proper” can never be taken to mean possessing judge-like qualities, because there is an abundance of cases, particularly in South Africa, where this question has been addressed by the courts. If the framers of our Constitution wanted a person who was a judge or had judge-like qualities, they would have enunciated those qualities.
We must be very careful that there is no compromise over what constitutes ‘fit and proper.’ We should not, out of respect for anyone, tinker with the principles of constitutionalism. If a learned person is wrong, and patently wrong at that, they must be told that they are wrong. But we must not try to let them save face by finding anything redeeming in an erroneous interpretation of our Constitution.
The Constitution must be upheld. There is a settled way in which it is upheld. The courts have been assigned responsibility as guardians of our Constitution. If there is a problem with the interpretation of a constitutional provision, the Courts must be approached and asked to provide an interpretation. This is how constitutionalism and the rule of law are protected in any society.
This is not just a matter of interpretation though. It is about constitutionalism, which is aimed at limiting the arbitrary use of power. The freedom of all men and women is in danger when constitutionalism is ignored.
We are not yet out of one constitutional crisis and here we are being confronted by another constitutional crisis. The government seems to believe that it should do as it pleases. This proclivity on the part of the administration has to be checked, especially when the implication involved is trampling on the Constitution.
One controversy has not yet ended and another is about to begin. This time it is over the appointment of a Chief Justice and a Chancellor.
We have been down this road before. The arguments have been made before. The APNU+AFC coalition is fully aware of the arguments. It is fully aware that the Constitution does not require for the positions of Chief Justice and Chancellor to be advertised. It has never been done in the history of Guyana.
The Constitutional rule is that both the positions of Chancellor and Chief Justice require the agreement of the President and the Leader of the Opposition. This was another of Jimmy Carter’s proposals to move Guyana closer towards a constitutional, rather than political, form of shared governance.
Carter had put forward the idea that for these top judicial positions, along with the Commissioner of Police, there should be agreement between the President and the Leader of the Opposition. The constitutional reform process which emerged after the 1997 elections adopted that formula in relation to the appointment of the Chief Justice and Chancellor.
No agreement was ever reached between the PPP presidents and the Leaders of the Opposition as to the appointment of Chancellor and Chief Justice. As such, both Carl Singh, the acting Chancellor and Ian Chang, at one time the acting Chief Justice, were never confirmed. They remain the longest acting senior judicial officials in the English-speaking Caribbean.
Political gridlock denied both men their confirmation. APNU went as far as proposing that the appointments be settled by having persons apply for the positions. When it was pointed out to them that this was not what the Constitution provided for, they retreated and said that it can be measured to break any deadlock.
Well, there is no deadlock at present, because the Leader of the Opposition has not been invited to discuss the appointment of a Chancellor and Chief Justice. Yet, here is the government actually going ahead and advertising for the two top judicial positions. This is a serious development which should be brought to the attention of regional jurists.
The government should not be advertising for the positions of Chief Justice and Chancellor. This is not the constitutional means of selecting someone. The Constitution does not provide for any process of shortlisting through appointment. Further, it is violation of the doctrine of the separation of powers for the Executive arm to be involved in advertising and selecting persons for the two top judicial positions. It is highly improper for the executive arm of government to be involved in any determination as to who should be shortlisted for judicial appointment.
We are about to enter a second constitutional crisis. Guyana is in danger of sliding down that slippery slope from which there is no return.

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1 thoughts on “Jimmy again!”

  1. Kassem_B

    ‘We are about to enter a second constitutional crisis. Guyana is in danger of sliding down that slippery slope from which there is no return’
    But who to be blamed this time?
    It cannot be both
    Time for you guys to show you colour
    Don’t hide under pen name

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