“The Chancellor and the Chief Justice shall each be appointed by the President acting after obtaining the agreement of the Leader of the Opposition.” So mandates Article 127 (1) of the Constitution of the Co-operative Republic of Guyana. The Constitution is our country’s supreme law, and anything that contravenes that law is, as far as it so contravenes, null, void and of no effect.
It was not always the case that the President was obligated to first secure the agreement of the Leader of the Opposition before the President could appoint the Chancellor and the Chief Justice. Indeed, prior to 2000 when the Constitution was amended, under what is popularly referred to as the 1980 Constitution, all that was required was for the President to have “consultation with the Minority Leader.”
We have still retained in today’s Constitution only “meaningful consultation” as the necessary engagement between the President and the Leader of the Opposition regarding some constitutional office holders, such as the three persons nominated by the President to the Teaching Service Commission. Appointment of the Chancellor and Chief Justice, however, require agreement by and between the two leaders.
When, how and why did we as a country change from requiring our President to have consultation with the Minority Leader to mandating the President to secure the agreement of the Leader of the Opposition in the appointment of a Chancellor and Chief Justice?
In the Report of the Constitution Reform Commission to the National Assembly of Guyana dated July 17, 1999 in a chapter titled ‘Background to the … Reform Commission…’ it is recorded “… after the election, there were four weeks of street protests led by the PNC generated by claims relating to the delay in the counting of votes for Region 4, and the allegedly premature declaration of one winning candidate for the Presidency. Ethnic tension and Ethnic violence escalated.” This was the context which gave rise to the Herdmanston Accord, which was brokered by a Caricom mission comprising former Attorney General and Foreign Minister Sir Henry Forde QC; then Vice Chancellor of University of the West Indies, Sir Alister McIntyre; and former Commonwealth Secretary General, Sir Shridath Ramphal SC, assisted by the United Nations crisis management expert, Hugh Cholmondeley. The Accord was signed on January 18, 1998 by representatives of the PPP/Civic and the PNC. The Herdmanston Accord provided for a Menu of Measures which the Caricom mission felt could “contribute significantly to the resolution of existing problems.” One of the measures, implemented within a few days of the signing of the Accord provided for a three month moratorium on public demonstrations and the simultaneous lifting of the ban which the Minister of Home Affairs had imposed on such demonstrations earlier in January. The other main measures in the Accord were a sustained dialogue between the PPP/Civic and the PNC “with a view the fostering greater harmony and confidence”; an audit or independent enquiry into the elections; and constitutional reform. On July 4, 1998 an addendum to the Herdmanston Accord was signed in Castries, St Lucia following talks between the Caricom Heads and President Jagan in her capacity as the representative of the PPP/ Civic and Mr Desmond Hoyte as the representative of the PNC. The statement also committed the parties to completing the process of constitutional reform in accordance with the Accord timetable. On August 6 1998 three weeks after the PNC Parliamentarians took up their seats, the National Assembly approved a resolution establishing the Special Select Committee of the 7th Parliament to determine the terms of reference and composition of the Constitution Reform Commission.
According to the Accord the Commission had a wide mandate and a broad based membership drawn from representatives of political parties, the Labour movement, religious organisations, the private sector, youth and other social partners. The Commission complied with the requirement for wide consultations, and hearing and giving effect to what the People want, by having scheduled public hearings across the length and breadth of Guyana, inviting the public to send in written submissions, extracting submissions written in the newspapers, hearing from overseas Guyanese through the internet, establishing special public hearings as a result of a special request from persons and organisations, hearing from local and international experts, etc.
At the conclusion of, and being informed by, the consultations the Commission made several recommendations regarding the judicature. It offered as a rationale for the recommendations made, inter alia, that “the Judiciary is the citizens’ chief protector against oppression or mistreatment by the State. It must therefore be, and be seen to be, as free as humanly possible from Executive pressure and influence…”
The specific recommendations were made on two broad principles: 1. “the Judicial system should be independent and free from official influence and control” and 2. “ the appointment and promotion of Judges should be removed as far as possible, from all party control.”
Regarding the appointment of the Chancellor and Chief Justice, the Constitution Reform Commission was categorical in its recommendation: “the Chancellor and Chief Justice should be appointed through a consensual mechanism.”
The consultations with the people of Guyana resulted in Article 127 (1) of the Constitution, which states unambiguously, “The Chancellor and the Chief Justice shall each be appointed by the President acting after obtaining the agreement of the Leader of the Opposition.”
Haslyn Parris was the Secretary to the Commission. He opined that the people entertain expectations, hopes and desires that “the country’s leaders would work together [through a consensual mechanism] so that the People’s aspirations could be fulfilled.”
This is a summary of how we came as a country to have a constitutional provision that is different from what existed before and which mandates that before a Chancellor and Chief Justice can be appointed, the President must first have the agreement of the Leader of the Opposition.