The acting Chancellor and acting Chief Justice’s performance and appointment

Jun 03, 2018 Eye on Guyana with Lincoln Lewis, Features / Columnists

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The approach being taken to the appointment of a substantive Chancellor and a Chief Justice, and the performance of acting Chancellor Yonette Cummings-Edwards and acting Chief Justice Roxane George-Wiltshire, bring to bear my trade unionist perspective. It is imperative workers – unionised or not- in the workplace enjoy the emotional security, grounded in industrial relations principles that will cause them to perform, regardless of who their supervisors are.
That being said, there is acknowledgment for the history-making appointments of the Justices to the two most senior positions in the Judiciary. Their appointments reflect trade union’s principle and Guyana’s law for equality in the workplace; and their performance that of testimony of the capacity of women when placed in positions of authority and power.
The fact that the Justices have been acting for a considerable period, and the issue of identifying persons for confirmation to the posts has been mired in political manoeuvre, this notwithstanding, they have been revolutionising thinking and behaviour within the Judiciary.
From the layman’s vantage point, the impression is being conveyed that the Justices cannot be controlled by the political machinery, on either side, and see their jobs as the Rule of Law being paramount. Guyana is also fortunate to have, sitting on the bench, a member of the draft team of the present Constitution that captured into law/articles the raw emotions and desire of the people as to the society they want to live in, including the system under which they want to be governed.
As judge for the Constitutional Court, George-Wiltshire is bringing enlightenment to an instrument that has been stomped on due to the want for public education and being tested in the court.
Recent decisions by the Justices, that may have had serious political overtones and witnessed partisan posturing, have caught both sides of the divide off-guard. These decisions are not only noteworthy for the quality of work that came from the bench, including attention to the spirit and intent behind law-making and administration, but are challenging all sides to do better in their preparation. A clear message is being sent to Government, Opposition and all, that abuse of the privilege in office will not be tolerated by the courts.
The Rule of Law plays a pivotal role in the development of society. Every citizen, group or institution, irrespective of politics and connection, must feel confident to lay their grievance before the court. This would allow for rulings to be made, the establishing of precedence, and the strengthening of our system of governance.
Continuous calls, internal and external, for the filling of the vacancies cannot be ignored for much longer. An important element also being overlooked is that there has been no public objection to the Justices’ performance, neither were they told that they are not performing satisfactorily.
It is unfair for persons to be placed to act in vacant positions over extended periods, and at the end of time be advised the period of acting has ended and someone else will fill the position. Those who make decisions as to the future of persons’ employment must take cognisance of an industrial relations principle that protracted delay in making decisions on appointment represents denial of opportunity and benefits that can be accrued with permanent employment.
Appointment to the substantive positions cannot be done outside of custom and practice and Article 127 (1) of the Guyana Constitution. Until both the President and Leader of the Opposition have agreed that the condition/modus operandi has changed, then what applied in the past remains the mechanism through which these appointments shall be made.
Every Chancellor in the past came out of the rank of the local judiciary. The act of asking persons to apply for the posts was never part of the mechanism for these appointments. The introducing of a process that asked persons to apply and be interviewed, could only be considered when there is agreement between the President and Leader of the Opposition for a new criteria and mechanism for the appointments.
As Leader of the Opposition, David Granger had proposed to then President Donald Ramotar – when he was invited to address the substantive appointments for the posts – that the jobs must be advertised, as he was not satisfied with the names being proposed by Ramotar. A proposal remains a proposal until there is an agreement. When Granger assumed office as President the proposal made to Ramotar still remains a proposal.
Article 127 (1) expressly mandates “agreement” between the President and Leader of the Opposition in filling the posts. Where the identification of the persons requires such, ipso facto, the mechanism for arriving at that agreement must also be agreed upon.
The question of the appointment to the posts is not about what the President or Leader of the Opposition thinks; it is about respecting the mechanism being used to arrive at a decision. Secondly, any process that denies competent workers professional growth and tenure, because they do not fit a particular perspective or interest, is counterproductive.
Since the impasse occurred from the period Bharrat Jagdeo served as president, it may be important for some form of correction and amelioration to be done, commencing with the retroactive appointments of Justice Carl Singh as Chancellor and Justice Ian Chang as Chief Justice, giving to both retroactively all the benefits the positions are entitled to. This act can commence the process of minimising racial mistrust and political antagonism, but more importantly, it gives effect to retroactive appointment, which is an activity within the industrial relations scenario.
While there may be inhibitions, doubts and suspicions between the two leaders, the current system that exists for the appointment to the posts must be allowed to work. If after the substantive appointments frosty relations between the two continue, and a new mechanism is required to remove future stalemate, it should be taken to the National Assembly and have a bipartisan agreement from which future appointments will be made.
Setting new criteria for appointments at this juncture can be seen as discriminatory to the incumbents who are acting. Going this route undermines the emotional security pivotal for good performance. The exemplary performance of the Justices does not mean absence of some level of emotional insecurity in their present position. We must seek to get it right, for the Judicature shoulders responsibility for ensuring the Rule of Law, a sacred value to be pursued and respected.

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