ANOTHER TWO STEPS BACKWARD

Nov 04, 2017 Features / Columnists, Peeping Tom

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We have a much bigger constitutional crisis on our hands. The unilateral appointment of the Chairman of the Guyana Elections Commission (GECOM) which has caused a furor pales in comparison to a more blatant constitutional intrusion which has gone by without so much as whimper.
Earlier this year, the Government of Guyana advertised for applications for the positions of Chief Justice and Chancellor, the first time in recent history this has happened. According to a report in the state- owned media, those persons interested in the jobs were required to submit their applications to an email address which originates in the Ministry of the Presidency, the seat of Executive authority.
There are two things which are flagrantly unconstitutional about this approach. Firstly, the Constitution makes no provision for any such advertisement for the job. Secondly, it is in violation of a most revered constitutional principle.
The Constitution states that the positions are to be filled by persons appointed by the President with the agreement of the Leader of the Opposition.
As is well known, the PNCR was opposed to the appointment of the former acting Chancellor, Justice Carl Singh; (he therefore held the substantive position of Chief Justice). The former acting Chief Justice, Ian Chang could not therefore be confirmed. The AFC has never supported the PNCR on the position it took with regards the non-confirmation of Justices Chang and Singh.
The now President, David Granger, when he was Leader of the Opposition, had simply continued the policy of Robert Corbin of not agreeing to the appointment of Justice Singh. As such, the positions remained vacant.
The Constitution does not provide for a mechanism to break the deadlock which may arise when there is no agreement between the Leader of the Opposition and the President. The reason is that these appointments are intended to be consensual, just like the Chairman of GECOM. Incidentally, this form of shared governance, regarding the appointment of the Chancellor and Chief Justice, was also proposed by former US President, Jimmy Carter as means of promoting greater political consensus and giving the opposition a greater role in appointments.
Granger, when in opposition, had pushed the line that there should be advertisements for the top posts. When pressured by those who felt this would amount to extra-constitutional measure, he put it as a means of breaking the deadlock.
There is at present, no deadlock over who is to be appointed as Chancellor or Chief Justice because there has been no consultation on this issue between the President and the Leader of the Opposition.
Yet, the government has gone ahead and advertised for the posts of the two top positions and among those who were said to have constituted the panel, to examine the applications was the person who has now been appointed as Chairman of GECOM.
The government there is trampling on the Constitution. There is no provision for advertising of positions. Yet, the government has gone ahead and done this.
What this could mean is if, as expected, the court challenges to the appointment of GECOM and it goes all the way to the Appeal Court, we could in all probability have someone hearing the appeal who was appointed based on the recommendation of a panel which comprised the very person whose appointment is being challenged.
That is assuming, of course, that the appointees to the posts of Chancellor and Chief Justice will come from that process which the government has initiated.
There is no need for persons outside of Guyana to have been invited to apply for the posts of Chancellor and Chief Justice. Traditionally, those posts were held by persons practising in our justice system. We have a history of producing some of the best jurists in the Caribbean. When the names of the first batch of Justices of the Caribbean Court of Justice were announced, two persons who practised here were among that cohort.
We have never been short of quality and qualified jurists. Why then has it been deemed necessary to seek advertisements for the jobs when this could mean persons who practise outside of Guyana and non- Guyanese being able to apply?
However, the more substantive concern is that there is no requirement, under our Constitution, for advertisements, and there is no disagreement as yet requiring a deadlock-breaking mechanism.
The second major problem with this approach to filling the positions of Chief Justice and Chancellor is that it is violation of a sacred principle of constitutionalism: the principle of the separation of powers. The Executive should have no role to play in advertising for these positions and in establishing any panel to consider the applications. This is unconstitutional because it violates the principle of the separation of powers.
There is no provision for such an approach under our Constitution. The independence of the judiciary is threatened when the executive arm of the government can decide to advertise for judicial appointments and then sets up its own panel to consider those applications.

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