I have read, with ominous forboding, a legio-historical piece by Priya Manickchand captioned “How it came to be required that there must be agreement between a president and opposition leader before chancellor, chief justice can be appointed”, “Agreement versus meaningful consultation” (SN and KN, Sunday January 7, 2018).
I confidently assume that this Priya Manickchand is the Attorney–at–law; and former Minister of Education in the Donald Ramotar government. And I take note that it was this Priya Manickchand (and surprisingly not Anil Nandlall) who was the lawyer who accompanied Bharrat Jagdeo (Leader of the Opposition) to the “consultation” meeting with President David Granger (accompanied by the Attorney General and the Minister of State) on the appointment of a chancellor and chief Justice (GC, January 4, 2018 headlined “No decision on top judicial posts”).
What does this letter portend; what is its true, (veiled) purpose? Is it purely intellectually informative in its purport – an optimistic thing? Is it the precursor to some impending “feral blast” (a term of commendation infamously coined by Dr. Luncheon) on February 7th – a pessimistic perspective of mine, you might think. I am not persuaded that it is the former. And I do not share the optimism of the GCs editorial of Sunday January 7, 2018 (“President and Leader of the Opposition meeting”).
As I remind myself of the Orwellian disposition of these PPP/C officials, I wonder whether its purpose is to publicly lay the foundation for a very contentious consultation process – contending that post nomination consultation (as distinct from proposals as a form of invitation to treat/discuss) is constitutionally flawed; that the Opposition Leader cannot acquiesce in such flaw by agreeing to the appointment of those two nominees of the President – i.e. Kenneth Benjamin for the office of chancellor; Yonette Cummings – Edwards for the office of Chief Justice.
And on that hypothesis, public relations (PR) becomes crucial, for if the consultation(s) becomes contentious, and ends without agreement, such is bound to generate considerable public angst, disgust and outrage given the impeccable and unmatchable credentials of the nominee for the office of chancellor; on the circumstantial evidence of his competitive selection/recommendation by the President’s 3 – jurist panel (Singh/Patterson/Lutchman)
So, it is not irrelevant to remind readers that (Guyana) scholars are few (a very different credential from the general public service ministry scholarship awardees); scholars who chose to pursue a career in the discipline of law are rare.
President Granger’s nominee for chancellor is one such scholar. Kenneth Benjamin, a Guyanese, wants to serve Guyana in the Judiciary. A boost of scholarship there can only be all-beneficial. As a grateful nation and people, we should be thankful. To withhold agreement for his appointment (all other things being equal) must attract constitutional opprobrium. It would be an unreasonable withholding; it would be sheer irrationality, as I will show.
Ominously, Priya Manickchand chooses this consultation point in time (in a rare and unaccustomed exhibition of letter writing) to bring into sharp focus, and remind us of article 127(1) (by quoting it at the very beginning of her letter and also at the end) that it “mandates” Bharrat Jagdeo’s agreement before President Granger can substantively appoint Kenneth Benjamin or Cummings-Edwards to hold the office of chancellor, Chief Justice respectively. In strict constitutional law, she is, undoubtedly, right. But is such trite legalism her main point of focus and intent? Who needs to be reminded of that requirement of Jagdeo’s agreement? Not the President’s legal advisor(s)!
There is no dispute; there is no difficulty, or vexed question of interpretation; there is no unknown mystery about it! So, I probe beneath the surface of her letter; I lift the historical veil. What do I find lurking beneath that historical façade?
With my inquisitive, inquiring legal mind, I pay particular attention to her words which carry in their phraseology a perceptible nuanced threat or admonishment. She writes “the consultation with the PEOPLE OF GUYANA resulted in article 127(1) of the constitution which states UNAMBIGUOUSLY” [article 127 (1) is again quoted and upon invoking the ghost of Haslyn Parris about “people entertain expectation… consensual mechanism… people’s aspirations” – he, ironically and paradoxically was a PNC/R GECOM Commissioner, minister in the Forbes Burnham Government and I believe once PNC Executive member, so read between the lines; her position – she would pontificate – is not just some biased PPP position it resonates with PNC personality].
She continues “…. 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” (emphasis mine).
I hold no brief for President Granger, but I am not aware of any circumstances which might suggest that President Granger is in any doubt at all about the requirement of Jagdeo’s “agreement” for a substantive appointment. Indeed, the circumstantial evidence says there is not one jot of doubt.
So, what is Manickchand’s fixation, anxiety and unease, apprehension all about? I remind myself that lawyers strive on contentions. But surely, it could not be that she has been induced by anything the President has done, to believe that there is a real danger of article 127(1) being ignored or by passed by the President. There is now, “consultations” (with equal bargaining power as between the President, and Jagdeo) with a view to obtaining Jagdeo’s “agreement” to those nominations.
So, is Manickchand insinuating, and unwittingly fore-warning, that their position is, and would be at the follow-up consultation meeting on February 7, that article 127(1) requires that the President should have first consulted with Jagdeo about his (i.e. President’s) proposals (as distinct from nominees) and obtain his agreement for the appointment of Kenneth Benjamin; and Cummings-Edwards; instead of, as has happened, firstly nominating, and then holding consultation; reducing (so the argument goes) Jagdeo’s role to rubber-stamping?
Whatever the (de)merits of that view, I would urge on Counsel that the 3-jurist panel selection of Kenneth Benjamin; and the President’s consequent nomination of him is a fait accompli (i.e. an accomplished fact). And so, if his acceptance (by Jagdeo) becomes rubber-stamping, such surely attracts no constitutional (and I would posit neither political) opprobrium.
We are not in the field of private law of contract. These appointments are not for Jagdeo’s private benefit or commercial/financial interests, or political advantage/convenience. All that matters is that these appointments be intended to, and be seen as manifestly likely to serve the public/ “people’s” interest in the fostering of an independent Judiciary with leadership of exemplar, intellect and integrity.
“Agreement” in this constitutional context and subject matter does not necessarily have to involve (even as a matter of “meaningful consultation negotiation/bargaining (as invariably happens in the private law context) between the President and Jagdeo. Here, it is all about the nature of the subject matter of the “agreement” to be obtained.. And, here, what the President has offered the Opposition Leader for obtaining his agreement (for his acceptance) is a scholar/tried and proven Justice for Chancellor; a tried and proven Justice for Chief Justice.
I would suggest, and further urge on Counsel, that she could more usefully expend her effort, by advising her leader that under article 127(1) there is an IMPLICATION that he would not unreasonably or irrationally withhold his agreement; that he is not permitted to agree, or not agree in accordance with his own deliberate judgment or state of mind; and that this limitation on his power of agreement is so because he is a creature of the Constitution and by the Constitution itself, it is ONLY the PRESIDENT who can in the exercise of his constitutional power act in “accordance with his own deliberate judgment” as prescribed by article 111; and that all other constitutional creatures not mentioned in article 111 are required by the public law of the constitution, to act reasonably and not irrationally given all the surrounding circumstances. (expressio unius est exclusio alterius).
The point being urged here is that any withholding of agreement without providing to the President rational reason, is susceptible to judicial review (unlike the President’s article 111 acts “in accordance with his own deliberate judgment”); such withholding being likely to be quashed; and declared unconstitutional.
And, of course, there is the option (albeit undesirable) of the President proceeding, in the event of failure to obtain Jagdeo’s agreement, to make acting appointments under article 127(2).
Jagdeo is reminded of his (acting) appointment of then Chief Justice Carl Singh as acting Chancellor in 2005 (acting until February 2017). And, surely, Counsel recalls the constitutional case of Committee for the Defence of the Constitution Inc. V. the Attorney General of Guyana (2006). And the (unreported) ruling of Justice Ramlall in that case in which the matter of (acting) appointments to the offices of chancellor and Chief Justice were extensively considered in what, respectfully, I consider a generally commendable, instructive decision, in which that Judge made a clarion call for agreement to be reached on these appointments; and deprecated the seeming contentment and satisfaction of our politicians, with prolonged acting appointments.
I end with this: the issue of the appointments of Kenneth Benjamin and Yonette Cummings-Edwards is not a matter of politics; it is of law.
Manickchand’s letter, both anticipates, and peremptorily strives to mitigate, by PR in the press, the outrage that any failure by the Opposition Leader to agree; and their would-be staunch criticism of any consequential resort by President Granger to article 127(2) (which potentially is not free from difficulty of interpretation) would engender. Be prepared. Yet, I hope the events of February 7 prove me wrong.
Maxwell E. Edwards
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