A formula for gridlock

Jul 18, 2022 Features / Columnists, Peeping Tom

David Granger attempted to resolve the gridlock in the appointment of a Chancellor and Chief Justice. He caused notices to be placed calling on persons to apply for these positions.
In so doing, another layer of politicisation of these appointments was added.

The applications were required to be sent to an address ministerofstate@gmail.com, suggesting that the applications would have to be considered by the Ministry of the Presidency.

This means that the nominees would be determined by the Ministry of the Presidency, through some unrevealed process and then these nominees would be subject to consultations between the country’s two foremost political leaders, the President and the Leader of the Opposition, for there to be agreement. The Granger proposal aimed, as he said, at making the process more transparent, was far from so.

As it turned out, when he became President, Granger was interested in nominating the Chief Justice of Belize as the Chancellor. But it was not clear how the process of election was employed to arrive at this choice.

When he was Opposition Leader, Granger had proposed the same application process to break the lengthy gridlock in appointment of a substantive Chancellor and Chief Justice. The PPP/C took the position that such an arrangement was not catered for in the Constitution.

And while the Constitution does not prohibit such a process, the fundamental objection is that having an application process subjects judicial applications to having to apply to the Executive. This is in violation of the separation of powers. Presently, the Leader of the Opposition is trying to break the impasse in the simplest of manners. He wants the acting incumbents to be confirmed. But it is not simply a question of making appointments.

As the Attorney General seems to be suggesting, the present system of appointing the two top judicial positions does not work. It has led to interminable gridlock. So even if perchance there is consensus between the President and the Leader of the Opposition on the appointments, what happens in a few years when one or both of the appointees retire and have to be succeeded.
The need for political agreement between the Leader of the Opposition and the President has been and remains a recipe for gridlock. There has been no agreement between the two for quite some time and there is not likely to be in the distant future.

But more fundamental is the point that politicians should play no part in deciding these appointments. It flies in the face of the independence of the judiciary for the top positions to be subject to the judgment or the discretion of politicians. There are also other considerations which should be taken into account when making these appointments. Seniority should not be the only criterion when it comes to succession. To be considered also should be the intellect of the candidates and their record in terms of their decisions being published or cited in law reports.

We once had a Court of Appeal judge who was noted for concurring with the lead decision. He was often fond of writing, “I agree and have nothing to add.” On the other hand, there was Justice Ian Chang a legal genius and savant who was a man before his time. It makes no sense for the President and the Leader of the Opposition to attempt to consult on the country’s top judicial posts. The constitutional rules for the appointments have to be changed to remove the threat of constant gridlock and to depoliticise the process.

Both the President and the Leader of the Opposition should agree on a mechanism to arrive at a mechanism which would allow for the appointments not to be subject to gridlock, to be liberated from political agreement and to be based on meritocracy. The rules establishing the Caribbean Court of Justice has a mechanism which provides for the appointment of judges to the Court. It insulates the appointments from politics.

Guyana should determine the best mechanism to be employed for making these appointments and, then, go ahead and institute this in law. In other words, the formula, which has led to constant gridlock, needs to be revamped. The formula has not worked; it has never worked and will never work.

At the same time, the Judicial Service Commission needs to look closely at the criteria which it uses for appointment of judges. The Commission must ensure that the quality of our jurisprudence does not suffer as a consequence of the quality of the appointments made.

(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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