One cannot support a CCJ and have inhibitions about non-nationals being a Chancellor or CJ

Dear Editor,

Every secondary school student knows that the word ‘onslaught’ carries within its phraseology the connotation of an attack − a furious one. So, for Mr Nandlall, the proposed plan to advertise for the positions of Chancellor and Chief Justice when there is no existing vacancy in the office of Chief Justice; the very approach of now advertising for those positions; and “more significantly” the non confirmation of the present acting holders constitutes a furious attack by the David Granger government, on the independence of the judiciary (‘Why are we recruiting judges from outside Guyana?’ SN, June 29). But how could that be? It is not. Undoubtedly, there is a vacancy for the office of Chancellor, and constitutional law and the law of probability as well as common sense require that both be advertised at one and the same time. If, potentially, Carl Singh (now acting) becomes the substantive Chancellor, then ipso facto a vacancy would exist for a substantive Chief Justice. As Counsel must know, in the Committee for Defence of the Constitu-tion Inc. No. 993-5/A of 2006 case, Justice William Ramlall ruled that it is unconstitutional for one and the same person (ie, Carl Singh) to concurrently perform the functions of the offices of chancellor and chief justice.

If this is the government’s thinking, interpretable that way from the Minister’s utterance then, we as officious bystanders, must not prematurely be condemnatory in our analysis. Counsel conveniently and selectively has forgotten that it was President David Granger who (even while in opposition in the National Assembly) took a concrete measure to enhance (not attack) the independence of the judiciary by making it financially a non-budget constitutional agency, thus securing its financial independence from the executive branch. Security of tenure, salaries, compliance with constitutional procedures for appointments, etc, are the hallmark of the judiciary’s independence. Nothing the Minister of State said even remotely threatens or impairs such security, or constitutes a departure from constitutional procedures from a government policy perspective.

Turning now to Counsel’s apparent objection to a government policy of inclusionary recruitment (particularly in respect of the Caricom region). It is sometimes dangerous and misguided to rely on history; history has its own peculiarities and vestiges. Our judiciary is no longer domestic only in its hierarchy; it is regional. Does Mr Nandlall have any objection to Guyana’s membership of the Caribbean Court of Justice (CCJ). If the answer is no, then his question “Why now”? would elicit the answer that one should consider the true ramifications of our membership in the CCJ and that by such membership Guyana has moved on. One cannot want our final court to structurally be the CCJ (I understand that one of its current judges is Irish bom), 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, potentially (or even in reality) being our chancellors and/or chief justices. You cannot approbate and reprobate.

Haynes, P, Luckhoo, P, Thom, CJ and Gonsalves-Sabola, P, (all Guyanese) held the highest judicial office in the Grenada, Jamaica, Antigua & Barbuda and Bahamas judiciaries respectively. As you know the law and the Judiciary are necessarily intertwined. Guyana’s judiciary may stand still if we persist with an insular anachronism, while the rest of Caricom moves on and that will be bad for both. Besides, is the Caricom skill certificate irrelevant in matters of this type? Does it extend to the judiciaries of the member states?

Lastly, as to Mr Nandlall’s point about confirming the present acting holders, Article 111 of the constitution (which is even more entrenched and “impenetrable” than the provisions regarding the independence of the judiciary, for it requires a referendum for its alteration) rubbishes any notion of some legitimate expectation or some historical right in the present holders of those offices based on them holding them … for more than a decade …” to be confirmed. Under Article 111 the President must act “in his own deliberate judgment” in his choice of Chancellor or Chief Justice. Here, I draw a distinction between a choice in the first place, and the Leader of the Opposition’s agreement to that choice (Article 127).

I end with this general comment: regionalism is more likely to be achieved if, mutatis mutandis, we endeavour to practise it in our politics, economy and judiciary alike.

Yours faithfully,
Maxwell E Edwards