August 8, 2021
As the country lurches from one imbroglio to the next, one is forced to reflect on the fact that for the most part those who lead us are lacking a certain generosity of spirit. There are no Nelson Mandelas here, although admittedly his humaneness, grace and capacity for clemency make him the exception in any time and in any place. But even if the citizens of this nation do not anticipate that anyone of his stature will suddenly arise in their midst, are they not justified in hoping that the politicians who rule over them exhibit at least a measure of magnanimity towards their opposite numbers? And above all, are they not entitled to expect that those same politicians will not sacrifice conformity to the Constitution on the altar of pettiness?
What is particularly disconcerting, however, is when government spokespersons advertise their small-mindedness to the public in terms which make it out to be a virtue, never mind that their position entails them violating the law of the land. The latest government representative to be culpable in this regard is none other than President Irfaan Ali himself, who addressed the nation and held a press conference to commemorate the first anniversary of the PPP/C’s return to government on August 2nd, 2020.
At the moment this country has no substantive Chief Justice or Chancellor of the Judiciary. Justices Roxane George-Wiltshire and Yonette Cummings have been acting in those respective posts for the past three years. From the head-of-state’s words it would appear that he wants to make the appointments. Except that he doesn’t. He is imposing a condition on a constitutionally-mandated consultative procedure and then blaming the opposition for not meeting the arbitrary condition he has fabricated. That condition is that Leader of the Opposition Joseph Harmon must first recognise the PPP/C government as legitimate before he will consult him on the matter of judicial appointments as the Constitution requires.
“As you are aware, the Leader of the Opposition has still not issued any statement recognising the legitimacy of the government. So, I don’t know who I am consulting with,” intoned the President sententiously last week. He went on to be quoted as saying: “I know definitively who is the Leader of the Opposition and I know definitively who the President of Guyana is. I am sure Harmon definitively knows who also is the Leader of the Opposition and who is the President … So the ball is in his court to do the right thing. And I’m hoping … that very soon he will stop his reckless statements about the government and do what is right in the interest of the people of Guyana.”
Perhaps the President needs some advice from his Attorney General, because the exact words of Article 127 (1) of the Constitution read, “the Chancellor and the Chief Justice shall each be appointed by the President, acting after obtaining the agreement of the Leader of the Opposition.” The rest of the population considers that provision clear enough, even if its import escapes the head of state, and it does not take anyone with a PhD to recognise that ‘doing what is right in the interest of the people of Guyana’ lies in his hands in the first instance, not in the hands of Mr Harmon.
Whether that is what he has in mind or not, President Ali is conveying the impression that he really has no particular interest in making the two most senior appointments to the judiciary. To have an acting Chief Justice and Chancellor flies in the face of the rule of law, and it was none other than Mr Harmon who said at a much earlier stage that “Keeping people in acting positions is a way of controlling people.” On this occasion he was absolutely right. Justices of the Caribbean Court of Justice have been equally critical of acting judicial appointments here, including Justice Adrian Saunders who had described the situation as inexcusable, and a “significant stain” on the rule of law.
In 2017 Justices Cummings and George-Wiltshire were given acting appointments following a temporary agreement between former President David Granger and then Opposition Leader Bharrat Jagdeo, but as far as substantive appointments went, there had been no Chief Justice since 2001, or Chancellor since 2005. The predecessors of the current office-holders, Justices Carl Singh and Ian Chang, both retired from their posts without ever having been substantively appointed. Not to have a Chief Justice, for example, for twenty years would be considered unthinkable in most parliamentary jurisdictions, but here we have a head of state and government who believes that gestures from the opposition are more important than the administration of justice and a functioning democracy.
In March this year Mr Harmon had let it be known that he would support the appointment of both Justices Cummings and George-Wiltshire in their respective capacities, and called on the President to confirm them in their posts. For his part, he said, he was prepared “to do what was necessary to ensure that it happens.” Now it may be that these are not the candidates for permanent appointment that the President has in mind, but that is not the point. The onus is on him to make the first move and call the Opposition Leader in for consultations.
As we reported, President Ali’s attention was drawn to the fact that while he was insisting on a precondition for consultation in the matter of judicial appointments, his government had nevertheless accepted a nomination from Mr Harmon for members of the Local Government Commission. We quoted him as responding: “There is a difference in the way the Local Government Commission is appointed [as compared to that] of the Chancellor and Chief Justice. There is a parliamentary process in the case of the Commission and in the case of the Chancellor and Chief Justice there has to be consultation directly between the President and the Leader of the Opposition.”
It is a specious argument, since whether he is dealing with an individual from a party or the party itself through the agency of that individual operating in the context of Parliament, there still has been no recognition at either level of the government’s legitimacy. In other words the government will work with APNU+AFC when circumstances suit it, and will decline to do so when they don’t. All they are doing is opening themselves to charges they do not want to appoint one or both acting judicial incumbents to their posts. Even if they don’t, it is still essential for the President to call in the Opposition Leader for consultations to see if any agreement can be hammered out.
Leaving aside the illegality of the path the head of state is pursuing, there is also the matter of his lack of broad-mindedness and charity when confronting the complexities of this society. He is right to be angry about the attempt to rig the elections and he is right to feel exasperated about the puerility of the opposition in insisting his party is illegally in office. But it is not his place to penalise them for their shortcomings by demanding they acknowledge his legitimacy publicly. He knows very well that after all they have told their constituents they do not dare confess to them in any public sense that they were wrong; it would be too humiliating. A later leader may be able to do it at some point, but not the current complement.
As it is, the coalition is in Parliament, behaving as if it is the opposition, so where is President Ali’s problem? In addition, the PNCR, the bedrock of APNU, is in total disarray, and given the history of party politics in this country, what more does the PPP/C want, unless it is their total eclipse as an entity? Even if that were to happen, the likelihood is that there would in due course be some replacement. Freedom House will not become the hub of a one-party state, however that might chime with its early communist leanings.
The President likes to talk about One Guyana, but he is not doing some of things which would achieve that, even if it is a realistic end. Nearly half the nation voted for the party which he currently refuses to deal with, despite the fact that in the instance cited he is constitutionally required to do so. Does he seriously believe that such an approach will help him to his goal? Among many other things, it is certainly not moving us towards an independent and impartial judiciary.
The PPP/C was not voted into office to get some form of redress in a petty fashion from the APNU+AFC. It was voted into office to govern the country.
