Articles 126 and 127 of the Constitution provide:
“126. Except as otherwise expressly provided or required by the context, in this Constitution the word ‘Judge’ includes the Chancellor, the Chief Justice, a Justice of Appeal and a Puisne Judge.
“127. (1) The Chancellor and the Chief Justice shall each be appointed by the President acting after obtaining the agreement of the Leader of the Opposition.
“(2) If the office of Chancellor or Chief Justice is vacant or if the person holding the office of Chancellor is performing the functions of the office of President or is for any other reason unable to perform the functions of his or her office, or if the person holding the office of Chief Justice is for any reason unable to perform the functions of his or her office, then, until a person has been appointed to and has assumed the functions of such office or until the person holding such office has resumed those functions, as the case may be, those functions shall be performed by such other of the Judges as shall be appointed by the President after meaningful consultation with the Leader of the Opposition.”
Given the underlying premise of the separation of powers which inheres in the Westminster model contemplated by the Constitution, the construction of the President’s powers in these Articles should be narrow – to limit the power of the leader of the executive to dictate as to the appointment of members of the judiciary. Any ambiguity in the Articles should be resolved by the adoption of construction narrowing rather than widening that executive power.
It is possible that the Leader of the Opposition will agree to a substantive appointment of the persons nominated by the President to the chairs of Chancellor or Chief Justice. In the event that he does not agree, it will then fall to the President to unilaterally appoint someone to act, as he is empowered to do under Article 127(2). What is immediately evident from that Article, however, is that the power of the President to unilaterally appoint an acting Chancellor or Chief Justice does not give him an unlimited choice of candidates. He must appoint one of the other Judges (ie a puisne or appellate judge as defined in Article 126).
The ‘clever’ solution by the politician would be to first appoint his preferred choice to the judiciary, and then, having made that person a ‘judge’, to appoint that newly made judge to the office of Chancellor or Chief Justice. This sleight of hand would defeat the clear language of the Article, and would be likely to be set aside by the courts if challenged. The options available to the President according to the language of the Article limit that servant of the people to make his appointment from among those individuals who are judges. The appointment of a non-judge to the judiciary solely for the purpose of then appointing him acting Chancellor or Chief Justice defeats the language and violates the intendment of Article 127.
The Caribbean judge touted by the Chronicle as having been identified for the office of Chancellor might win the nod of the Leader of the Opposition. If he does not, it is submitted that, since he is not a ‘judge’ within the definition of Article 126, he is not among the group of persons identified in Article 127 from whom Mr Granger can unilaterally make an acting appointment.
But I would venture further. In the present impasse, the President has already exercised his discretion under Article 127 upon the retirement of Messrs Chang and Singh. He has appointed to act in the office of Chancellor and Chief Justice the Hons Cummings and George. In the language of Article 127, those acting appointments should endure until such time as a person has been appointed in the substantive post. It should not be open to Mr Granger, a member of the executive, to willy nilly chop and change in his choice of acting appointments. To permit him to do so would do irreparable harm to the separation of powers contemplated by the Constitution, and would contravene the ordinary language of the Article. A strong argument can be made that, having appointed the Hons Cummings and George as acting Chancellor and Chief Justice respectively, Mr Granger has exercised and exhausted his constitutional discretion, which is now spent. Those two worthies may now be contemplated by the Constitution to hold their acting positions until they resign or become unfit, or until a person is appointed substantively to the office with the consent of the Leader of the Opposition.