Interpretative convenience is not a recognized method of constitutional interpretation. Since May 2015 we have seen the APNU+AFC and more particularly President Granger twist, bend and pervert the clear language of our Constitution to suit and to secure the President’s wish. The people of Guyana have seen President Granger’s interpretation of the Constitution in his unilateral and unconstitutional appointment of the Chairman of Gecom. The people of Guyana took note of President Granger’s refusal to act on the recommendations of the Judicial Service Commission with respect to the appointment of judges to the Supreme Court for several months. The people of Guyana have taken note of the President’s unlawful revocation of the leases of some rice farmers in Berbice which revocation the Chief Justice condemned. The people of Guyana witnessed President Granger’s wrongful and unlawful interference with the work of the constitutionally autonomous Police Service Commission.
And there are several other instances of constitutional violations which can be laid at the door of
President Granger and his APNU+AFC government. With these known constitutional violations as the President’s established record, how can any reliance be placed on Minister Harmon’s assertion that the President will fully comply with the constitutional provisions in relation to the appointment of a Chancellor and a Chief Justice.
President Granger as he was constitutionally required to do, sought the agreement of the Leader of the Opposition to two persons he identified for appointment to both offices. It is now known that the Leader of the Opposition did not agree with the President’s proposal.
From 2005 to 2015, President Granger, the PNC and latterly APNU+AFC opposed the confirmation of judges who were acting in the offices of Chancellor and Chief Justice. The refusal of successive PNC leaders including President Granger to agree to judges proposed for appointment to the offices of Chancellor and Chief Justice on those occasions marked the end of the constitutionally prescribed appointment procedure for a Chancellor and Chief Justice.
Not so, on this occasion. President Granger told the local press, that he was awaiting the advice of his Attorney General. The Attorney General by his successive record of failures in the courts of Guyana and even at the Caribbean Court of Justice cannot be relied on to give a constructive and meaningful opinion on the constitutional implications resulting from the failure of the President to secure the agreement of the Leader of the Opposition.
The Attorney General apart, it is President Granger himself who has given a not so subtle indication to the people of Guyana, what his intentions are. After years of being responsible for there being judges acting in the offices of Chancellor and Chief Justice, President Granger is reported as saying: “It is not desirable to continue the current practice of acting which existed for several years and I would like to have a substantive appointment. It’s a question of necessity.”
Those were ominous words. The confirmed appointment of a Chancellor and a Chief
Justice should never be a matter of what the President likes. Confirmed appointments serve the judicial system well and instil confidence in the people of Guyana in the country’s judicial system. What the President likes introduces troubling political considerations into the senior judicial appointment process.
More troubling however, is the President’s conclusion that the substantive appointment of a Chancellor and a Chief Justice was a matter of necessity. The use of the word ‘necessity’ by the President bears significant implications. I have grave reservations that given his military background that that was a loose choice of word by the President. My gut feeling is that it was not.
The truth is that there is no room for the application of the concept of necessity. Former Attorney
General Anil Nandlall went to great lengths to point out in the press recently that the Constitution itself provides what should happen if the Leader of the Opposition does not agree to the President’s nominees.
Addressing the Bar Association’s annual dinner in November 2017, Sir Dennis Byron, former President of the Caribbean Court of Justice, recalled that for twelve years no substantive Chancellor was ever appointed. He noted that the failure to agree was not an acceptable option, and that in the absence of any framework to establish agreement, the issue became justiciable.
Those comments by Sir Dennis Byron appear to have emboldened President Granger. He appears by his recent public utterances to feel strengthened in his new stance on top judicial appointments.