– “they may feel beholden to the executive”
Opposition parliamentarian, Carl Greenidge, is of the opinion that Ian Chang and Carl Singh acting in the
posts of Chief Justice (CJ)and Chancellor respectively, may have them knowingly or unwittingly making decisions which would suggest that they feel beholden to the executive, as it relates to constitutional matters before the constitutional court.
He noted too that such an arrangement leaves the nation on a dangerous precipice. Chartered Accountant, Chris Ram also holds a similar view.
The Constitutional/Administrative Division of the High Court which was officially gazetted on October 1, 2011, was set up to handle certain matters which include those regarding the application or interpretation of the Constitution, alleged violations of the fundamental rights, the constitutionality of any legislative enactment etc.
It was established by way of a Practice Direction issued by the Chancellor (ag.) which may suggest that it is regarded as a mere administrative arrangement rather than a substantive change in how constitutional issues are addressed judicially.
Unlike the Commercial Court or the Family Court, no specific Rules of Court were prescribed for the ”Constitutional Court”. The old rules of the Supreme Court apply. The Practice Direction did not specify how many judges ought to constitute the Court or who should preside over it. But since its inception, the Chief Justice (ag.) has headed the Constitutional/Administrative Division as the sole judge, and has heard and delivered dozens of decisions on the Constitution, some of them fundamental and a few quite controversial. These are in addition to the scores of other
cases he handles during the course of any week, including bail applications.
Asked to comment on the Division, Ram said that Guyana is fortunate to have someone like the acting incumbent Justice Ian Chang as the Judge of the Constitutional Division.
He said that case reports of decisions emanating from the totality of the Supreme Court of Judicature which includes the Court of Appeal and the High Courts of Berbice, Demerara and Essequibo suggest that Justice Chang is by far the most productive of judges in the system.
On a cautionary note, however, Ram, who is also an attorney-at-law, said that there are concerns that the system depends so heavily on a single judge, and that while there have been commendable attempts at increasing the number of judges it will take many years for the wide gap in quality to be bridged.
Regarding the acting appointments of both the Chancellor and the Chief Justice, Ram said that it is unthinkable that the framers of the Constitution intended that such high offices could be filled by acting appointees for any extended period, let alone about nine years.
The Chartered Accountant said that the Constitution allows two political persons – the President and the Leader of the Opposition – as the sole authorities on the appointments to these offices.
Confirmed appointments require agreement between the President and the Leader of the Opposition, while acting appointments require meaningful consultation, a nebulous concept at best, according to Ram.
He said, however, that the whole framework for the functioning and appointments to these high judicial offices needs to be reviewed, and at a minimum the Constitution should have had some tie-breaker to untangle the “Gordian knot” which faces the country over these offices.
Ram concluded, “Pretending that there is no problem is to take the mythical ostrich approach and we all know how that ended.”
Some seasoned lawyers commented that there is need for suitable persons to be appointed to the positions of Chief Justice and Chancellor permanently, since having persons acting for extended periods runs the risk of compromising their decisions in order to secure appointment.
APNU’s Shadow Minister of Finance, Carl Greenidge, agrees implicitly. He said that the current arrangement in which the CJ and Chancellor have been acting for nearly a decade is not only unacceptable but dangerous because clearly, they both would like to be confirmed and may be “knowingly or unwittingly biased.”
“In order to secure confirmation they may be tempted to facilitate the Executive and the President in particular who have such a powerful influence on their confirmation. That situation may assist the President but not the country,” Greenidge asserted.
He emphasized that these posts are so critical that the persons appointed to them should command the confidence of the key stakeholders. The political parties he said, represents those stakeholders.
Also on a televised Alliance For Change (AFC) programme, the party leader, Khemraj Ramjattan said that as it relates to the Judiciary, indeed the Constitution gives the President a very heavy hand in the selection of the Chancellor and the Chief Justice.
He said that these positions in the hierarchy of the judiciary depend on the agreement of both Opposition leader and the President, and because they cannot agree, both have been acting in the two positions; chancellor and CJ.
“My point is, we have to look at who the President can really appoint. To that extent, it gives a lot of powers to the President and one can say indeed that it is beneficial to have the opposition leader serve a role in agreeing.
“However, for a number of years we have not gotten agreement. It has left a really undesirable kind of scenario whereby, we are not getting what the constitution contemplated—consensual appointments,” Ramjattan asserted.
He said, too, that there is need for some amount of reconfiguration whether it should have the opposition part of that process, or have a change in the president having this kind of executive power.
“These provisions, to alter them are another big thing. You have to get a referendum and a two-thirds majority. The President might not want to do that and we won’t get to change that,” he concluded.
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