‘The lawfulness of state actors’ decisions frequently depends on the reasons they give to justify their conduct, and a wide range of statutory and constitutional law renders otherwise lawful actions unlawful if they are not justified by reasons or are justified by the wrong reasons’(Mathilde Cohen. Sincerity and reason-giving: when may legal decision makers lie? DePaul Law Review, Summer 2010).
Last week, Chief Justice (ag) Roxane George gave a written ruling which, with some elaborations, followed the oral decision she gave a few months ago. The gist of her decision is to be found in the final pages of her ruling, where she stated that it was unnecessary for the list submitted by the Leader of the Opposition for the president to choose the chairperson of the Guyana Elections Commission to contain judges or persons qualified to be judges, that the entire list is not unacceptable if the president finds one or more of the persons thereon to be unacceptable, that the president is required to state reasons for deeming each of the six names on the submitted list as unacceptable and that he was not obliged to select a person from the six names on the list as a result of a failure to determine positively that the persons thereon are unacceptable as fit and proper persons for appointment.
I had argued previously (SN: 19/07/2017 & 26/07/2017) that although the requirement that public officials should give written reasons for their decisions has been established in Guyanese jurisprudence for nearly two decades, the notion that the president could proceed to appoint someone outside the names submitted by the Leader of the Opposition if he determines that all the nominees are unacceptable, was bothersome to me. ‘I believe that unless some mitigating explanation is provided in the written decision, this aspect of the decision would be extremely retrogressive since it is relatively simple to manufacture reasons for rejecting the list.’
Based upon Justice Thurgood Marshall’s observation that ‘[A]ny prosecutor can easily assert facially neutral reasons for striking a juror, and trial courts are ill equipped to second-guess those reasons’, Mathilde Cohen suggested that ‘This assertion seems to suggest that the law should be interested in motives rather than in justifications because of the easiness of fabricating post hoc rationalizations that appear neutral and lawful but are in fact insincere. This ambiguity brings to the fore the function of legal justification. In other words, is law after sincerity understood as the giving of one’s motivating reasons or is it after sincerity understood as the capacity to state at least one neutral, lawful reason?’ (op. cit.)
The CJ’s written decision attempted to bolster the reason-giving requirement by utilising the following submissions of the Leader of the Opposition and the Solicitor-General respectively. In using his discretionary powers the president ‘is obliged to act reasonably, rationally and objectively and not capriciously and arbitrarily. He must objectively assess the person’s ability to discharge the functions of his office, their integrity, political impartiality and such like’ and ‘it is hoped that the discretion be exercised in a manner that promotes the public interest and common good.’
Appeals may be pending but the written decision appears to be well argued and given the constitutional requirements, the current state of the relevant law, a literal interpretation of the Carter formula, etc., it is difficult to envisage what else could have been done to curtail this discretion. Nonetheless, suggesting an interpretative emphasis intended to aid in further limiting it can do no harm. Reason-giving has long been thought an important aspect of the democratic process as it informs persons why a decision was made, i.e. that it was not made arbitrarily or on irrelevant information and whether they should seek a review of the decision and if so what issues need to be addressed. It provides an incentive for decision-makers to consider more carefully the decisions they make and generally helps to promote better public discussions and commitment.
That said, I believe that Cohen’s work, which only purports to ‘sketch a tentative framework for a contextual and institutional analysis of sincerity in the law’, can contribute an awareness that may further help to strengthen the application of this concept. She argued that while judges are expected to give sincere reasons and many laws demand that the executive, including the president, be transparent when announcing major public decision, all these actors are routinely accused of feeding lies to the public, and/or embellishing the truth when justifying their actions. However, there is an important difference between law and politics, for secrecy, lies, and deception have been entangled with the political process from its inception and thus truthfulness is rarely ever counted as a political virtue. Asking whether the law recognises the requirement to give sincere reasons Cohen argued thus:
‘My claim is that the requirement of sincerity, where it exists, is usually implicit in the duty to give reasons. To be sure, legal systems rarely present us with a formula to the extent that decision makers must disclose “sincere reasons” for their action because sincerity is generally assumed. Sincerity works as a default rule for legal justification. In this regard, legal discourse does not differ from ordinary rules of communication: just as daily conversations are regulated by an implicit norm of sincerity, legal justifications provided by state actors are expected to be sincere. In everyday interactions, sincerity works as a guarantor of communicative validity in that the sheer possibility of communication with others relies on such transparency. Where participants in an exchange are deemed uncooperative and distrustful, a group is unable to continue a conversation. This implicit norm of sincerity is so deeply rooted in our cultural practices and expectations that it is rarely mentioned explicitly. In light of this, it should come as no surprise that the same norm of sincerity seems to underlie legal discourse in general and reason-giving in particular.’
Where the giving of reasons is mandatory, our current task, then, is not to simply accept lawful reasons but to place the onus upon the provider to give ‘sincere lawful reasons’ and then to carefully weigh and examine them. This column has many times stated that while the above moral requirement may have practical relevance in most other countries, in the few such as Guyana where what is reasonable, rational and objective has over many years been constructed by the different ruling ethnic elites to suit what they consider to be in their and their constituency’s interest, when we again attempt to set the rules by which we live we should seek to depend less upon such lofty exhortations and rather try to institutionalise preventative and/or facilitatory processes.