The difference between intervention and interference

Aug 19, 2026 Features / Columnists, Peeping Tom

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Kaieteur News – Some persons have pounced upon an internal controversy within the Caribbean Court of Justice and the subsequent disclosure that the President of the Court, Justice Winston Anderson had become involved in trying to resolve Guyana’s long-running judicial impasse over the appointment of a substantive Chancellor and Chief Justice.  These critics have been behaving as though the revelation of this involvement is itself evidence of wrongdoing.

The issue concerns the failure, for more than two decades, to appoint substantive holders of Guyana’s two highest judicial offices, the Chancellor and the Chief Justice. The position of Chancellor and Chief had for many decades been occupied by successive acting office-holders.

Under the Constitution, the President appoints both offices only after obtaining the agreement of the Leader of the Opposition. That agreement was elusive for more than two decades. It is important, however, to distinguish between judicial interference and judicial intervention, because the two are not synonymous and the entire controversy appears to depend upon confusing one with the other.

In the context of appointments, judicial interference would occur where a judge, or the head of a court, improperly intrudes into a constitutional process in a manner that usurps, diminishes or attempts to exercise powers belonging to another constitutional actor, such as directing the President whom he must appoint or compelling the Leader of the Opposition to give his agreement.

That is not what Justice Anderson appears to have done, at least from what has been disclosed. Nothing in the account of his involvement suggests that he purported to appoint anyone, instructed the President whom to appoint, stripped the Leader of the Opposition of his constitutional role, or otherwise altered the machinery established by the Constitution. The Constitution remains exactly where it was before Justice Anderson became involved. The President retains the power to propose the appointment, while the Leader of the Opposition retains the constitutional power to agree or withhold agreement.

The fact that a third party seeks to facilitate agreement between two constitutional actors does not, by itself, amount to an exercise of their constitutional powers, any more than a mediator at a labour dispute becomes the employer or the trade union because he attempts to bring them to an agreement. Indeed, the history of the matter makes Anderson’s intervention understandable, even if one believes that he should have adopted a different method of approaching it.

For years, Guyana has endured the extraordinary situation in which its two most senior judicial offices have remained substantively vacant, with successive judges performing their functions in an acting capacity. The constitutional requirement for agreement was introduced precisely as a mechanism to encourage consensus, not to produce an apparently permanent institutional stalemate.

And this is where Kamal Ramkarran’s defence of Anderson deserves consideration, because Ramkarran does not contend that the CCJ President possesses some mysterious constitutional authority to make appointments in Guyana. Rather he argues that Anderson has a legitimate institutional interest in the strength, independence and stability of a judiciary whose decisions ultimately come before the regional court.

That is hardly an absurd proposition, particularly when CCJ is Guyana’s apex court and therefore has an obvious interest in ensuring that the national judicial system functions with the permanence and authority expected of a constitutional democracy. One may disagree with Anderson’s judgment about how he should have intervened without concluding that his objective was illegitimate, and indeed Anderson himself has apparently conceded that a different approach might have been preferable.

That concession should be seen as a recognition of prudence rather than an admission of constitutional misconduct, because judges, like everyone else, can acknowledge that an intervention might have been handled differently without accepting that the intervention itself was unlawful. What is curious is that those now most agitated about the CCJ President’s involvement seem less troubled by the circumstance that produced it in the first place: Guyana has gone for decades without substantive holders of the two highest judicial offices.

The real constitutional question, therefore, is not whether Justice Anderson had a right to make the appointment, because he plainly did not; the question is whether he improperly interfered with the constitutional actors who do possess that authority. The evidence presently disclosed does not demonstrate that he did.

There is a world of difference between taking over a constitutional process and trying to make a constitutional process work, and Anderson appears to have been doing the latter. Those who believe he should have confined himself to speeches are entitled to that opinion, but speeches have been made for years while the problem remained unresolved; Ramkarran’s point that Anderson tried to do more than merely lament the situation therefore deserves serious consideration.

Perhaps the controversy should consequently be turned on its head: instead of asking why the President of the CCJ intervened, perhaps we should ask why Guyana’s political leadership has required decades of acting appointments before anyone was prepared to seek a different way of resolving the impasse. And onto now we still have an acting Chancellor and an acting Chief Justice, with or without Justice Anderson’s intervention.

The views expressed in this article are those of the author and do not necessarily reflect the opinions of this newspaper.

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• CCJ, Justice Winston Anderson, Kamal Ramkarran, Leader of the Opposition

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