Below in an opinion piece by Attorney-at-Law, Member of Parliament and former Attorney General and Minister of Legal Affairs, Anil Nandlall:
A constitution which encapsulates the democratic ethos of a nation, that is built upon the doctrine of separation of powers, which, guarantees the independence of the judiciary, limits executive power and accords the citizenry their basic human rights as fundamental freedoms, will always be a hindrance to the authoritarian.
With each passing day, the Constitution of Guyana becomes a greater obstacle to President David Granger. Almost every appointment of a constitutional nature produces a battle between the President and the constitution. These battles have made it demonstrably clear to the avid observer that President Granger has an uncanny intolerance for rules and the views, opinions and the input of others. These are the hallmark qualities of an authoritarian.
It is no secret that he admires Mr Forbes Burnham. Mr Burnham, however, was a legal scholar. Therefore, as authoritarian as he was, he understood the requisite constitutional concepts and precepts and appreciated the importance of not violating them. As a result, he realized very early that he could not function under the Westminster Constitution, handed down to Guyana upon Independence.
One of the reasons for rigging the 1973 Elections was to empower himself with sufficient votes in the National Assembly to change it. Within the next ten years, he scrapped it and wrote one of his own liking which he rigged a national referendum to promulgate. Thus, the 1980 Constitution was born and properly labeled the Burnham Constitution. The PPP from 1992-2015 made over 200 changes to that constitution. Every single change was designed to democratize it, to devolve power away from the Executive and to increase checks and balances against executive power, while at the same time augment civil liberties.
Forbes Burnham would not have been able to function under such a Constitution although he was a lawyer. Mr David Granger was a soldier. Functioning under such a Constitutional matrix would be extraordinarily difficult.
We are witnessing it first-hand. The difficulties are deeply philosophical and ideological. Mr Granger cannot mentally process that as Executive President, he can only appoint as judges, to the High Court and the Court of Appeal, those whom the Judicial Service Commission recommends.
Similarly, he cannot fathom that he can only appoint a Chairman of GECOM from a list of persons emanating from the Leader of the Opposition. One recognizes these mental conflicts whenever he speaks. Perhaps, this is the reason why in over one year he held a singular, very controlled, press conference.
misplaced aura of invincibility
His remarks quoted in the Chronicle in relation to the deposit of the USD $18 million signing bonus into an account at Bank of Guyana rather than the Consolidated Fund, as is mandated by the Constitution, are quite revealing. He said: “I am head the head of government, I am responsible, I am aware of it and it is a legitimate Government of Guyana exercise; and I am aware that it is [at] Bank of Guyana in Escrow; once it is an Escrow account, it means that it cannot be used for the purposes for which it is not intended.” It is clear from these remarks that the President has no regard for the Constitution and that he is of the view that once he sanctions any given matter, there is no need for constitutional or any other regulatory compliance. It is the same mentality which inspired his disrespectful retort that the Chief Justice is entitled to her own opinion, when Chief Justice Roxanne George handed down the ruling in the Marcel Gaskin case.
Now that we are faced with the appointment of a Chancellor of the Judiciary and a Chief Justice, the identical disregard for and of the Constitution is on public display. It is common knowledge that article 127(1) of the Constitution requires, in a mandatory fashion, the agreement of the Leader of the Opposition before such appointments can be made by the President.
The President submitted to the Leader of the Opposition two nominees. The Leader of the Opposition withheld his agreement, as he is constitutionally entitled to do. Every utterance which the President has made since lends to the clear inference that he will proceed to make the appointments without the agreement of the Leader of the Opposition and consequently in violation of the Constitution without any regard to the consequences. This President seems overwhelmed by a self-induced but misplaced aura of invincibility.
It is clear that the framers of the Constitution addressed their minds to the eventuality of a non-agreement between the President and the Leader of the Opposition on this matter. In so doing, and in order to avoid these two important offices being left vacant as a result of a grid-lock, they added subsection 2 to article 127. The relevant portion reads:
127(2) “If the office of Chancellor or Chief Justice is vacant[or] if the person holding the office of Chancellor… is for any other reason unable to perform the functions of his/her office, or if the person holding the office of Chief Justice is for any other reason unable to perform the functions of his/her office, then , until a person has been appointed to and has assumed the functions of such office or until a person holding such office has resumed those functions, as the case may be, those functions shall be performed by such other of the judges as shall be appointed by the President after meaningful consultation with the Leader of the Opposition.”
In the event of a grid-lock, this sub article allows the President to appoint persons to act in the offices of Chancellor and Chief Justice after holding meaningful consultations with the Leader of the Opposition: BUT these persons MUST ONLY be drawn from the existing complement of judges (“… such other of the judges…”). The sub article therefore, clearly prohibits the acting appointment of a person who is not currently a judge in the Guyana judiciary.
Doctrine of necessity
In short, having regard to article 127(1), the President cannot appoint his two nominees substantively to these offices because the Leader of the Opposition has not agreed; and by virtue of 127(2), the President cannot appoint Mr. Justice Kenneth Benjamin even to act in either position because he is not part of the complement of judges in the Guyanese judicial system.
Yet, as I have pointed out, the President in all his public outpourings is conveying the impression that he will, nevertheless, unilaterally, make these appointments. Again, we are witnessing the President’s intolerance for the Constitution and its conditionalities. This President seems to have forgotten that he is able to hold such high office and exercise the powers in connection therewith only by virtue of that very Constitution, which he kicks about like a football.
It must be pointed out that as a result of the existence of Article 127(2), which allows for the opportunity to break any grid lock or constitutional crisis which Article 127(1) may generate, the doctrine of necessity cannot be invoked.
This doctrine permits the resort to extra-legal actions to avoid a crisis. Here the framers of the Constitution addressed their minds to the crisis which a non-agreement can possibly precipitate and they, in their wisdom, crafted 127(2) to avoid it. Article 127(2) has worked for the last 13 years (2005-2018: Justice Carl Singh was first appointed to act as Chancellor in 2005). No one can argue that the Judiciary was in crisis during this protracted period.
Indeed, the President himself and his predecessor Mr. Robert Corbin are responsible for the non-agreement for all these years. The President, therefore, should be the last person to make this matter a major contention.
As I have indicated elsewhere, any such appointments by the President will be challenged and prohibitory orders will be sought against these unconstitutional appointees, restraining them from acting or performing the functions of these offices.
It is now left to those two highly decorated judicial officials, whether they would lend themselves to the constitutional heresy which I suspect the President would embark upon and whether the judiciary as an institution would allow itself to be used as a stadium for the President to play his political football.
History would record that I played my part.