Dear Editor
THIS is an open letter to both President David Granger and Leader of the Opposition, Bharrat Jagdeo.Your Excellencies, I have a civic duty to keep and I have kept eternal vigilance over matters of high constitutional importance. For me, one such matter is the impending vacancy in the office of Chief Justice of the High Court.
The present substantive holder of the office of Chief Justice is the Hon Carl Singh. And by what I consider to be the persistence of an anomaly, Justice Cummings-Edwards (no relative of mine) is the acting Chief Justice even though, as at present, there is in that office no vacancy, in my respectful understanding of the relevant constitutional provisions. Be that as it may, when Judge Carl Singh vacates the office of Chief Justice (whether by compulsory retirement/vacating at age 65 on 23rd February 2017; or by pre-retirement leave on 2017-01-01) two vacancies will automatically exist – (1) a newly arisen vacancy in the office of Chief Justice; (2) the extant vacancy in the office of Chancellor. None of these is, or can be matters of confidentiality, but are plainly matters of public interest and concern.
Under the Constitution and consistently with the 2007 ruling of Ramlal, it is the responsibility of the President to appoint persons to fill both vacancies by different Judges, after obtaining the prior agreement of the Leader of the Opposition. And, here is where pure law ends and mixed law and politics begin. Mr. President, the potentiality of Mr Jagdeo withholding his agreement is a haunting one that impels serious reflection and pondering. So, this impending vacancy brings into sharp renewal an old controversy – the modus operandi of the search for a Chief Justice and Chancellor. One might recall the disquiet that was stirred in 2015 by the President’s pioneering idea of a regional (rather than insular) search for our Chancellor(s) and Chief Justice(s).
I digress here to offer some elaboration on this impending vacancy in the office of Chief Justice for as I suspect, it has some potential for controversy. I contend that age 65 is the relevant retirement/vacating age, because the relevant office is that of substantive Chief Justice and according to article 197(2)(b) applies. Article 197 (2) (c) under which the Chancellor vacates at age 68, has no application to Judge Carl Singh. An acting Chancellor (as he is, as permitted by article 232(2) (a)] is not a Chancellor within article 197 (2)(c). So, as at present, Guyana has no such article 197(2) (c) Chancellor. Plainly, “Chancellor” and acting Chancellor are in contemplation of constitutional law, separate and mutually exclusive conceptions. Acting is conceived of as a temporary expedient; substantive Chancellor (in contradistinction) conveys permanency. Public Service rules as to pensions etc, confirm this distinction. No one would suggest that an acting Chancellor has a security of tenure qua acting Chancellor; but certainly, Judge Singh enjoys such security as substantive Chief Justice. One further digression: no Judge soon to vacate his office ought to commence hearing a new or fresh case, for in all probability it would be a part-heard case when he/she vacates office.
I return now to the crux of this letter. In a previous letter I had posited a view (which I now maintain) that it is as politically correct, as it carries no constitutional opprobrium for the President’s search (by advertisement or otherwise) to include regional candidates (“One cannot support a CCJ and have inhibitions about non-nationals being a Chancellor or CJ” – SN July 3, 2015). This extract from that letter merits quotation now – “our judiciary is no longer domestic only in its hierarchy, it is regional… One cannot want our final court to structurally be the CCJ (I understand that one of its current judges is Irish- born) with the necessary implication, that potentially judges, not Guyanese-born would finally be deciding our law and jurisprudence (for technically our Court of Appeal is now an intermediate court) and at the same time have inhibitions about non-Guyanese, or persons from outside the domestic component of our legal system … being our Chancellors or Chief Justices…”). But, would such modus operandi constitute some justifiable reason for Mr Jagdeo to withhold his agreement to the President’s choice?
Here, I would argue that even though the draftsmen of article 127 (1) did not use the words – “such agreement not to be unreasonably withheld” after the words … “acting after obtaining the agreement of the Leader of Opposition”, it is a necessary implication of constitutional law that article 127 (1) is to be so read and construed. For, unlike as with the President’s power to act in accordance with his “own deliberate judgement” (article 111[1] as to his choice (within constitutional eligibility restrictions) for Chief Justice and Chancellor respectively, the Leader of the Opposition has not been vested with any such unfettered power, generally or specifically. And, I know of no principle of constitutional interpretation, or authority, which would permit any public officer unreasonably exercise (and ipso facto in bad faith) any power, given not for personal egotism or aggrandizement, but to be exercised for, and in, the public weal or interest, (even as I direct myself that in theory, the President’s and Mr. Jagdeo’s different views can yet be both reasonable).
Regarding the matter of appointability (I draw a distinction between appointability and constitutional eligibility) en passant, I would mention that any appointment (whether substantive or in an acting capacity) of soon-to-be-retired incumbent judge (s) should not be contemplated. In the sphere of the Judiciary, such ephemeral expediencies (not being a matter of appointment of temporary part-time Judge(s), I would argue, is even if within the contemplation of the Constitution, not an efficient exercise of appointment power. The exercise involves too many significant practical processes to have to be redone so soon again, as would be necessitated by the soon-to-be retired judge’s retirement. I suspect Justice of Appeal B.S. Roy to be within this category. And, because this inefficiency is so patent and should as a matter of sheer commonsense be avoided, I suspect this is one point on which both the President and Leader of the Opposition can find consensus. And such inefficiency is but one of the considerations that the President can properly direct his mind to in the plentitude of his powers to act in “his own deliberate judgement” when embarking on his search for his choices.
So, to President David Granger I say–Mr President, let the search begin; the Constitution has endowed you with a plentitude of discretionary powers to use judiciously. To the Leader of the Opposition, Mr Jagdeo, the Constitution makers intend and expect that you would not unreasonably withhold your agreement; surely that must be a legitimate expectation for even your political constituency.
Regards
Maxwell E. Edwards