In the consideration of candidates for appointment to the posts of Chancellor and Chief Justice there continues to be discussion as to the persons identified to fill these posts, and the reported non-application for the job of Chief Justice by the person currently performing the duties. The persons who are being proposed by the President for appointment were arrived at through a process that involved applying for the job and a panel established to conduct the interviews and make recommendations.
President Granger has said that he had proposed the stated process to former President Donald Ramotar, during his tenure as Leader of the Opposition, but the latter did not accept same. As such when he ascended to the presidency he instituted this new process. In governance precedents and practices hold firm wherever you are. And in this specific case, the process in filling those vacancies by advertising throughout the British Commonwealth, receiving applications, and the appointment of an interviewing panel were never part of the process.
The interviewing panel consisted of persons I have the highest regard for. Their competencies are not being questioned and their role in this process is duly recognised, but let me place it in context. When a citizen is asked by the president to play his or her role by participating in a national activity of this nature it is anti-national to refuse to do so. As such, what the panel has done must be seen as being nationalistic and it should be recorded that its members had nothing to do with the establishing of the new process but just participated in a national service.
The mere fact that the Guyana Constitution says that the appointments have to be done after agreement with the Leader of the Opposition is indicative that the President cannot arbitrarily put in place a new process without having, at least at the minimum, consensus between the two. If for some reason the Leader of the Opposition nominates the persons currently acting in the position as Chancellor and Chief Justice he will be within his right to do so, merely because the custom and practices in the system regarding these appointments have been ignored.
Democratic governance is not practised based on feelings but the application of rules, laws, precedents and time-honoured principles. Reliance on gut feelings or some idea not grounded in careful thought for retaining and strengthening the institutions of governance will pose serious challenges to bringing about good governance and ensuring the comity of citizens.
The Constitution of Guyana expressly states the President and Leader of the Opposition have to agree on who fills the offices of Chancellor and Chief Justice. Departing from the principles and practices in making the appointments destroys the spirit and intent of the nation’s two premier political office holders working to achieve consensus and agreements in arriving at regularising the nation’s judicial service.
The custom and practice in filling these vacancies are that the leaders would meet, names are proposed by both sides, discussions relating to the appointments ensue, and agreement follows. Article 127(1) expressly states, “The Chancellor and Chief Justice shall each be appointed by the President, acting after obtaining the agreement of the Leader of the Opposition.” In effect what this article says is that even the process in arriving at the appointments there must be agreement.
Note is taken that the Caribbean Court of Justice head has called for the appointments to be filled and recognition that the intent of the Constitution was never to have the office holders acting for extended periods. Prolonged acting appointment is not a function of the Constitution but the inability of the politicians to put nation before partisan self-interest.
This matter is not about whether Kenneth Benjamin is eligible to fill the post of Chancellor or not, Yonette Cummings-Edwards that of Chief Justice, and Roxanne George-Wiltshire not reportedly applying for either position; it is about a long-held principle in how the vacancies should be filled which has been torpedoed for years by the inability to work for consensus and agreement.
The changing of the process is tampering with the appointments. While it is not known whether the current acting Chief Justice has an interest in being appointed to the job or not, the fact that she was considered good enough to act, and the precedent established that persons never had to apply, competing with other persons outside the Guyanese jurisdiction, she should have been considered for the job.
Let it be very clear, the process in arriving at these appointments requires the two political leaders meeting and proposing names, and most naturally they would have consulted with the persons they intend to nominate. The deviation from this in worker/management relations is considered a departure from norms and practices and the raping of existing agreements. At the worker level, agreement, existing processes, and standard practices are there to insulate them from being discriminated against or discriminated in favour of another.
If there is any failure in having agreement on the appointment and confirmation of a Chancellor and Chief Justice both the President and Leader of the Opposition must be held responsible. This nation deserves better from its leadership and must demand better.