The appointment process must be liberated from mechanisms for political inclusion

Apr 10, 2022 Features / Columnists, Peeping Tom

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Kaieteur News – Guyana’s political leaders and parties agreed to a consensus formula for the appointment of the top judicial officers – the Chancellor and the Chief Justice. That formula requires that there be agreement between the country’s two top political figures – the President and the Leader of the Opposition.
When this formula was entrenched by the National Assembly, it did not appear to the country’s National Assembly that it was effectively subjecting the appointments of top judicial appointments to a political process. Our political representatives did not view this as constituting political involvement in the appointment process.
The raison d’être of the Judicial Service Commission is to insulate the judiciary from political influence, particularly when it comes to appointments and disciplinary action. If the principal function of the JSC is to remove political meddling in judicial appointments, then how can there be a situation in which political agreement becomes necessary for the appointment of the Chancellor and Chief Justice?
The President is bound to act in accordance with the advice of the Judicial Service Commission in appointing judges. However, the JSC is totally emasculated when it comes to the substantive appointments to the post of Chancellor and Chief Justice. When it comes to these appointments, the Constitution of Guyana does not mandate consultation with the Judicial Service Commission. But there may be good reason for this, since both the Chancellor and Chief Justice are members of the JSC.
For the past 20 years, Guyana has been without a substantive Chancellor or Chief Justice. Knowledgeable persons have blamed the appointments’ formula for this unacceptable state of affairs.
The main fault line however is subjecting the appointments to a process aimed at political inclusion. This is at odds with the notion of seeking to insulate the judiciary from political influence, including in appointments. The appointments should be delinked from the mechanisms established for political inclusion. This would entail instituting an independent mechanism for appointments of the Chief Justice and Chancellor.
The practice involved in the appointment of judges to the Caribbean Court of Justice (CCJ) may be helpful in deriving a new formula. The agreement establishing the CCJ provides for judges to the Court to be appointed by the Regional Judicial and Legal Services Commission. That Commission is constituted of the President of the Court who Chairs the Commission, two persons nominated by the the Organisation of the Commonwealth Caribbean Bar Association (OCCBA) and the Organisation of Eastern Caribbean States (OECS) Bar Association; a chairman of the Judicial Services Commission of a Contracting Party selected in rotation in the English alphabetical order for a period of three years; the Chairman of a Public Service Commission of a Contracting Party selected in rotation in the reverse English alphabetical order for a period of three years; two persons from civil society nominated jointly by the Secretary-General of the Community and the Director General of the OECS for a period of three years following consultations with regional non-governmental organisations; two distinguished jurists nominated jointly by the Dean of the Faculty of Law of the University of the West Indies, the Deans of the Faculties of Law of any of the Contracting Parties and the Chairman of the Council of Legal Education; and (g) two persons nominated jointly by the Bar or Law Associations of the Contracting Parties.
This of course is quite a cumbersome arrangement but it shows the length to which the Caribbean Community went to ensure that appointments were free of political taint. Guyana should seek to have an independent mechanism for the appointment of the posts of Chancellor and Chief Justice. But it would not be advisable for any member of the CCJ to be so involved since the CCJ is Guyana’s apex court.
Former President David Granger had gone as far as suggesting that the posts be advertised. But this still does not address the concerns about who considers the applications and determines the appointments.
The archaic idea of national sovereignty is so ingrained in the country’s political psyche that it may be difficult for our leaders to contemplate involving non-national actors, including regional institutional actors, in any mechanism for the appointment of Chancellor of Chief Justice. We claim to be committed regionalists but are reluctant to surrender aspects of our national sovereignty to external parties.
That, however, may be the only recourse available if the 20 years old deadlock in the appointment of Chancellor and Chief Justice is to be overcome. An agreement to simply confirm those presently acting may be another option but this does not remove the possibility of future deadlocks when these offices become vacant.
(The views expressed in this article are those of the author and do not necessarily reflect the opinions of this newspaper.)

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