Lack of time and misinterpretation?

Aug 26, 2026 Features / Columnists, Peeping Tom

---

(Kaieteur News) – The belated explanation offered by Ralph Ramkarran, former Chairman of the Constitution Reform Commission (CRC) that the present constitutional gridlock over the appointment of Guyana’s Chancellor and Chief Justice resulted from a misinterpretation by the Oversight Committee of the CRC’s recommendation for a “consensual mechanism” deserves careful constitutional scrutiny.

It is certainly important to revisit the history of the 1999 reform process. But history cannot, by itself, determine the meaning of a constitutional provision that Parliament ultimately enacted and which has operated for more than two decades. The starting point must be the distinction between what the CRC recommended and what the Constitution now says. It is contended that the CRC recommended that the Chancellor and Chief Justice “should be appointed through a consensual mechanism.”

The Commission’s report dealt with judicial independence as a central constitutional value and sought, among other things, to remove judicial appointments as far as possible from partisan political control. The critical question, therefore, is whether the Oversight Committee merely “misinterpreted” that recommendation or whether it exercised the constitutional and legislative responsibility entrusted to it by translating a general recommendation into a specific constitutional rule.

The distinction is legally important. A constitutional commission makes recommendations; it does not itself enact constitutional law. The Oversight Committee was charged with taking those recommendations forward into the constitutional text. Indeed, the contemporary records show that the Committee understood that its task involved preparing drafting briefs and determining the constitutional framework necessary to give effect to the recommendations.

The eventual constitutional language is not ambiguous. Article 127(1) provides that the Chancellor and Chief Justice shall each be appointed by the President “acting after obtaining the agreement of the Leader of the Opposition.” That mechanism is considerably stronger than consultation. It creates a constitutional condition precedent: the President cannot make the substantive appointment unless the Leader of the Opposition agrees. That raises the obvious question: if the intention was merely to create a mechanism likely to produce consensus, why was the ultimate language framed as an absolute requirement for the Opposition Leader’s agreement? Was it simply misinterpretation?

I doubt whether.  The Fourth Report of the Oversight Committee, dated April 2000, shows that the Committee was actively considering precisely what a “consensual mechanism” might mean. Under Task Force D, the Committee expressly examined the issue and recorded possible models from Malawi and South Africa. One proposal was a parliamentary process requiring a two-thirds majority, followed, if necessary, by further rounds of voting.

This demonstrates that the problem of designing a mechanism was not conceptually beyond the reform process. Alternatives were being discussed. The historical record therefore appears more complicated than the proposition that the CRC simply ran out of time and the Oversight Committee inadvertently converted “consensual mechanism” into “agreement between two individuals.”

There is, nevertheless, a powerful constitutional argument for revisiting the arrangement today. Constitutional interpretation should not be divorced from constitutional purpose. The purpose of the reform was to strengthen judicial independence and public confidence in judicial appointments—not to give either political leader an indefinite veto over the constitutionally prescribed heads of the judiciary.

A constitutional power intended to secure consensus should not become, by its operation, a power to prevent constitutional government from functioning. The principle of legality requires public powers to be exercised for the purposes for which they were conferred. It would therefore be constitutionally troubling if the power of “agreement” were understood as an entirely subjective veto, capable of being exercised for political reasons unrelated to the suitability, integrity, competence or independence of a proposed appointee.

A mechanism which depends upon two political actors voluntarily agreeing indefinitely is not, in the strict sense, a mechanism for producing consensus. It is a mechanism for requiring consensus. The distinction is fundamental to the gridlock that now besieges the appointments of Chancellor and Chief Justice. The 1999 reformers were attempting to solve a real constitutional problem: the danger of executive domination of the judiciary. They succeeded in strengthening the Opposition’s role, but the resulting provision appears to have substituted the possibility of executive dominance with the possibility of political deadlock. The task now is not to assign blame for what happened twenty-seven years ago, but to learn the constitutional lesson. The central question for the present reform process should therefore be simple: How do we preserve the constitutional principle that the appointments of judicial officials should be free of political maneuvering and that, consequently, neither the Government nor the Opposition should control the appointment of the heads of the judiciary, while ensuring that neither can prevent the judiciary from having substantive leadership? Answering that question requires widespread consultations, expertise and, most of all, patience.

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

---

• Lack of time, misinterpretation, Peeping Tom

---