The Report of the Constitutional Reform Commission (CRC) dated July 17, 1997, recommended at clause 9.9.3.4. that the Chancellor and Chief Justice should be appointed through a ‘consensual mechanism.’ Both the Independence and the Burnham Constitutions had provided that for certain appointments, including the Chancellor (after the Court of Appeal and the post of Chancellor was created in 1970) and Chief Justice, the Head of Government must ‘consult’ with the Leader of the Opposition. As everyone knows, these ‘consultations’ became a perfunctory farce during Burnham’s time in office but were somewhat mitigated during Hoyte’s tenure.
By the time the CRC was deliberating in 1999, the situation in relation to consultation had changed. The PPP/C had been in government since 1992, and had begun to observe the provisions of the constitution relating to consultation with the opposition. However, during the deliberations in the CRC, members felt that in order to prevent a situation such as existed during the PNC’s terms of office from recurring, it was necessary to strengthen the language, and thereby the practice, about consultation. Thus wherever consultation was provided for in the constitution, the word ‘meaningful’ was added so that the requirement became ‘meaningful consultation.’
Because of the importance of the positions of Chancellor and Chief Justice as heads of the judiciary, and to strengthen its independence and the confidence of the population in it, which had been severely degraded in the past, the CRC felt that a higher level of ‘meaningful consultation’ should be established which could potentially lead to a consensus on the persons to be appointed to these positions. The CRC did not believe that there should be a constitutional requirement for consensus because this would have led to gridlock, as we have now seen. If the CRC had believed that there should be consensus, it would have so recommended. It did not. It did the next best thing. It recommended that a mechanism, called a ‘consensual mechanism,’ be agreed between the government and opposition during the drafting process which, whenever activated, would have the possibility to lead to a consensus between the President and the Leader of the Opposition.
The CRC could only make recommendations for constitutional reform because the
