Awaiting another stomp on the constitution

Mar 12, 2018 Letters

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Dear Editor,
Interpretative convenience is not a recognised method of constitutional interpretation. Since May 2015, we have seen the APNU/AFC and more particularly President Granger twist, bend and pervert the clear language of our constitution to suit and to secure the President’s wish.
The people of Guyana have seen President Granger’s interpretation of the Constitution in his unilateral and unconstitutional appointment of the Chairman of GECOM. The people of Guyana took note of President Granger’s refusal to act on the recommendations of the Judicial Service Commission with respect to the appointment of judges to the Supreme Court for several months.
The people of Guyana have taken note of the President’s unlawful revocation of the leases of some rice farmers in Berbice which revocation the Chief Justice condemned. The people of Guyana witnessed President Granger’s wrongful and unlawful interference with the work of the constitutionally autonomous Police Service Commission.
And there are several other instances of constitutional violations which can be laid at the door of President Granger and his APNU/AFC government. With these known constitutional violations as the President’s established record, how can any reliance be placed in Minister Harmon’s assertion that the President will fully comply with the constitutional provisions in relation to the appointment of a Chancellor and a Chief Justice.
President Granger as he was constitutionally required to do, sought the agreement of the Leader of the Opposition to two persons he identified for appointment to both offices. It is now known that the Leader of the Opposition did not agree with the President’s proposal.
From 2005 to 2015, President Granger, the PNC and latterly APNU/AFC opposed the confirmation of judges who were acting in the offices of Chancellor and Chief Justice. The refusal of successive PNC leaders including President Granger to Judges proposed for appointment to the offices of Chancellor and Chief Justice on those occasions marked the end of the constitutionally prescribed appointment procedure for a Chancellor and Chief Justice.
Not so, on this occasion. President Granger told the local press, that he was awaiting the advice of his Attorney General. This is going to be a forthcoming disaster. The Attorney General by his successive record of failures in the Courts of Guyana and even at the Caribbean Court of Justice cannot be relied on to give a constructive and meaningful opinion on the constitutional implications resulting from the failure of the President to secure the agreement of the Leader of the Opposition.
Apart from the Attorney General, it is President Granger, himself who has given a not so subtle indication to the people of Guyana, what his intentions are. After years of being responsible for there being judges acting in the offices of Chancellor and Chief Justice, President Granger is reported as saying: “It is not desirable to continue the current practice of acting which existed for several years and I WOULD LIKE TO HAVE A SUBSTANTIVE APPOINTMENT. IT’S A QUESTION OF NECESSITY.”
Those were thunderous, ominous words. The confirmed appointment of a Chancellor and a Chief Justice should never be a matter of what the President likes. Confirmed appointments serve the judicial system well and instills confidence by the people of Guyana in the country’s judicial system. What the President likes introduces corrosive, troubling political considerations into the senior judicial appointment process.
More troubling however, is the President’s conclusion that the substantive appointment of a Chancellor and a Chief Justice was a matter of necessity.
The use of the word “necessity” by the President bears very significant implications. I have grave reservations that given his military background that that was a loose choice of word by the President. My gut feeling is that it was not.
The law recognizes a concept of necessity. In the present circumstances, it would mean that if President Granger were to rely on the concept of necessity, then notwithstanding the fact that the Leader of the Opposition has not agreed to the appointment of the persons proposed. The President may go ahead and appoint the persons identified by him contending that without these appointments, the Courts would be paralyzed, the necessity therefore being the avoidance of such paralysis.
Such a contention would be farcical, unprincipled and hypocritical. They are two people who acted in those offices for over a decade and the courts were not paralysed.
The people of Guyana should take note, that the public comments by Minister Harmon and President Granger are intended to set the stage and lay the ill-advised and misconceived foundation for unilateral action by the President in clear violation of the constitution so that his proposed candidates can be appointed minus the agreement of the Leader of the Opposition.
The truth is that there is no room for the application of the concept of necessity. Former Attorney General Anil Nandlall went to great lengths to point out that in the press recently that the constitution itself provides what should happen if the Leader of the Opposition does not agree to the President’s nominees.
The President’s current stance on these appointments must not be examined in isolation. It must be seen in the light of comments made recently by Sir Dennis Byron, President of the Caribbean Court of Justice in November of 2017.
Addressing the Bar Association’s annual dinner, Sir Dennis Byron recalled that for twelve years no substantive Chancellor was ever appointed.
For a significant part of those twelve years, Sir Dennis was head of the CCJ. He never once uttered a public word of condemnation about that situation. He however, noted that the failure to agree (as must have been within the contemplation of our constitutional reformers who prescribed a formula for acting appointments) was not an acceptable option and that in the absence of any framework to establish agreement, the issue became justiciable.
Sir Byron has opened a can of worms. Having been silent on this matter for the past several years, now with the accession to office of President Granger and his APNU/AFC government, Sir Dennis finds it appropriate to make constitutionally unsound public comments on this matter and to offer advice gratuitously on a matter that could quite possibly come before him and his colleagues at the CCJ.
Those comments by Sir Dennis Byron however appear to have emboldened President Granger. He appears by his recent public utterances to feel strengthened in his new stance on top judicial appointments by the guidance provided by Sir Dennis Byron on the way forward and Sir Byron is known on his visits to Guyana for his social engagements with known PNC activists/supporters and former PNC ministers.
In the meantime, Guyana awaits another military style boot stomp on our Constitution!
Selwyn Persaud

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