Former Attorney General Anil Nandlall claimed that ‘With each passing day, the Constitution of Guyana becomes a greater obstacle to President David Granger. Almost every appointment of a constitutional nature produces a battle between the President and the constitution. These battles have made it demonstrably clear to the avid observer that President Granger has an uncanny intolerance for rules and the views, opinions and the input of others. These are the hallmark qualities of an authoritarian.’ He said that President David Granger admires Forbes Burnham, who understood that the constitution should not be violated, that ‘As a result, he realized very early that he could not function under the Westminster Constitution,’ and that one reason for ‘rigging the 1973 elections was to empower himself with sufficient votes in the National Assembly to change it. …. The 1980 Constitution was born and properly labeled the Burnham Constitution. It was under the PPP that changes were made to that constitution. Every single change was designed to democratize it, to devolve power away from the executive and to increase checks and balances against executive power, while at the same time augment civil liberties’ (Unilateral judicial appointments by the President will be challenged. SN: 17/02/18).
Mr. Nandlall was referring specifically to noises coming from the government that since the Leader of the Opposition has rejected the president’s nominees for chancellor of the judiciary and chief justice, he intends to unilaterally make permanent or acting appointments to these positions. While I must agree with his position that the president would be violating the constitution if he directly appoints his two rejected nominees, although he need not have, Mr. Nandlall framed his argument in the above fundamentally flawed political theorizing that must be considered if we are to devise an adequate political framework in which to live.
Article 127 (1) of the constitution states that ‘The Chancellor and the Chief Justice shall each be appointed by the President, acting after obtaining the agreement of the Leader of the Opposition’, and Article 127(2) states that if for any reason the chancellor and/or the chief justice are unable to perform their functions, ‘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.’ In opposition, the president operated rationally in this context and so am I to understand that after a mere three years in office, he has become so deluded by power as to have lost the capacity to understand what ‘agreement’ means or that the weight of legal opinion appears to be on the side of those who argue that he cannot appoint his nominee for the chancellorship to act in that position?! Moreover, is the president ignoring his many important advisors is or have they all been so seduced by power not to have informed him that any attempt to directly appoint his rejected nominees will be improper?
I think not, and suggest again what I did when the president adopted the unquestionably faulty position that the law allows only judge-like persons to become the chairperson of the Guyana Elections Commission. Rather than suspect theorizing about delusionary mindsets, we would do better to firstly look for our answers in the direction of real politics. The reality is that the Elections Commission and the courts are likely to play pivotal roles in the next election process as both should have done in the last one, and that the regime is looking for maximum leverage in both institutions. Having persons acting in these offices or who have reached the end of their professional life is one way of manufacturing that leverage.
However, it is with Mr. Nandlall’s extremely dubious political theorizing that I am most concerned. To say that Burnham could not have functioned within the Westminster system is obviously false. Forbes Burnham operated for some sixteen years – most of his political life – under the Westminster system. It was under it that he got rid of his coalition partner the United Force and began to systematically rig elections; began an extensive nationalization programme; made Guyana into a cooperative socialist republic and a presidency in 1980. In other words, Burnham became and stayed an autocrat under the Westminster system, which aided his endeavours by offering both the legislature and the executive to ruling groups, leaving the judiciary at their mercy. True, the PPP/C did make some useful changes to the constitution, but they were not fundamental enough for our political context. Its stable ethnic base did for the PPP/C what manipulated elections did for Burnham: kept it long in office and our Westminster-type political arrangements gave it control over the parliament, again leaving the judiciary at the government’s mercy. The PPP/C also ran an autocratic regime and by the time it left office, 60% of its own constituency and 80% of Africans believed it did not care for them (SN: Future Notes, April 30, 2014).
Furthermore, absurd as it is, Mr. Nandlall appeared to have been suggesting that gridlock does not now exist in the appointment process as ‘the framers of the Constitution addressed their minds to the eventuality of a non-agreement between the president and the Leader of the Opposition on this matter’ and to avoid gridlock added Article 127 (2) above. If, having recognised the possibility of gridlock, this article was all that the drafters could have devised, it would have been better that they not have tried. As Justice Byron, the president of Caribbean Court of Justice, reasoned, ‘any appointment made pursuant to Article 127(2), is envisioned as a short-term appointment.’ I believe that it is closer to the truth to recognise that the matter was overlooked and that for ten years the PPP/C government, recognising the advantageous position they were in vis-à-vis judiciary, did not make sufficient effort to use the constitutional reform process to solve the problem.
Perhaps the former AG claimed that gridlock does not exist because he wants us to believe that the process ends with the rejection of the Leader of the Opposition and short term acting appointments that must obviously lead to a political crisis and concessions being made to the opposition to win permanent appointments. The government has now stated that it will not act unconstitutionally in this matter and although unwise to do so, I believe that it is possible for the president to legally appoint his rejected nominees in acting positions. He simply needs to get the Judicial Service Commission (JSC) to appoint one of the nominees as a judge and then appoint him to act. Even if the JSC has not yet been re-constituted, this can be quickly accomplished, and outside of pure theory, it can be legally done in a fashion that will give the president and his party the capacity to achieve the appointment of new judges, and hence, after so appropriate resignations, his rejected nominee to the position of acting chancellor. One must only hope that self-respecting judges will not allow themselves to be manipulated in this fashion for though lawful it is doubtful that such a maneuver will be in keeping with the rule of law. Aware of the existence of this option the president and Leader of the Opposition should, in a timely manner, get the permanent appointments made.
The government in office has the prime responsibility for seeing that the rights of the people are protected. The president of the Caribbean Court of Justice pointed out that ‘good governance and the welfare of the citizens’ require that the top judicial offices of chancellor and chief justice are properly filled and after 12 years (about 10 of which were under the PPP/C), the ‘situation has moved well beyond what ought to be acceptable in a modern democracy where respect for the rule of law is maintained’ (SN: 15/11/17). As suggested above, we know that ‘Acting appointments for protracted periods are generally inimical to fearless, independent performance.’ Judges in Jamaica are up in arms because the government has appointed an acting chief justice on probation. Yet in Guyana, the former AG felt comfortable in arguing that ‘Justice Carl Singh was first appointed to act as Chancellor in 2005 and no one can argue that the judiciary was in crisis during this protracted period!’ Thus, although many persons and institutions may have been robbed of justice, the judiciary was not in crisis because all was more or less quiet!
We come to these issues with all our aspirations and prejudices, and if we are to build sufficient consensus to apply the correct measures to a polity that is extremely ill and in need of immediate, radical remediation, as we stand against recognizable wrongs, we should try to avoid doing so with extremely partial interpretations that can only cause greater harm.