THERE IS A LACUNA IN THE CONSTITUTION
June 5, 2013, By KNews, Filed Under Features / Columnists, Peeping Tom, Source
The Opposition parties should refrain from trying to bulldoze their Bills through parliament, knowing all too well that no self-respecting Executive President will assent to any legislation which does not have the consent of the government.
To proceed to pass Bills without the involvement of the Executive goes against the traditions of the Westminster system and gives the Opposition free reign to encroach on the responsibilities of the Executive.
This threatens the most important principle of parliamentary democracy: the separation of powers.
By tradition, the Opposition should only introduce Bills that deal with moral issues so as to not be accused of attempting to govern the country from the benches of the legislature.
Instead they should meet with the government and agree on a menu of legislative measures and ask to be given the opportunity to introduce these measures as Members’ Bills.
In this way, instead of moving towards contentious Bills, they would be engaged in the tabling of Bills that would find the support of government.
There are many areas in which the Opposition and the government can achieve a meeting of minds concerning legislation. One such area concerns the constitutional provisions governing the appointment of the Chancellor of the Judiciary and Chief Justice.
It is frightening to know that in a country whose Constitution still professes the rule of law and an independent judiciary, there is a situation in which the confirmation of the two most senior posts in the judiciary is subject to an agreement between the President and the Leader of the Opposition.
This should never have happened.
To effectively subject the appointment of the two most senior positions in the judiciary to a political deal undermines the very notion of an independent judiciary.
Guyana has found itself in this situation because when Jimmy Carter came here for the 2001 elections, he urged a more inclusive system of government.
In order to promote this objective, he suggested that there be agreement between the government and the Opposition in the appointment of certain public offices.
This suggestion was taken up during the constitutional reform process. An amendment was passed in relation to the appointment of certain specified public officers.
Those appointments no longer would require mere consultation between the President and the Leader of the Opposition.
It would now require agreement. In short, no agreement means no appointments.
What the legislators failed to take into account is what happens if there is no agreement.
Should Guyana continue to have the untenable situation, as we have had for eight years now, where the persons acting as Chief Justice and Chancellor cannot be confirmed because of the failure of the President and the Leader of the Opposition to reach an agreement?
Some hope was provided years ago when, despite no agreement being reached on whom to appoint, it was agreed that those acting would be allowed to act.
After acting for eight years, one would have anticipated that it would be now a mere formality for both the acting Chancellor and Chief Justice to be confirmed. Both have greatly distinguished themselves by the quality of their jurisprudence and both are persons held in high esteem within the legal profession. And they have been doing the jobs now for years.
The Constitution of Guyana stipulates how these appointments are to be made. And where the Constitution makes stipulations, these should be followed.
It is a dangerous precedent for any proposal to be made which deviates from what the Constitution specifies – however seemingly attractive these suggestions may seem.
It is an ominous signal for any proposal to be made that is different from what is prescribed by the Constitution.
If we begin to go down this road, however well-intentioned the proposals are, it can open the floodgates to decisions being made outside of the province of the Constitution. Guyana should not go down this slippery slope.
The proposal for the top posts in the judiciary to be put up for persons to apply for is ridiculous to say the least.
This will undermine the hierarchy of authority within the judiciary.
No judiciary should ever be exposed to this risk. Can you image what can happen if a rank junior judge supersedes a senior judge to one of these posts?
And who will undertake the interviews for these positions? And will the same principle be proposed for the appointment of the Guyana Police Force and the Guyana Defence Force? Will the Opposition be willing to go down this road not just for the top posts in the judiciary but also for the security services?
The discussions should begin about these appointments.
The Leader of the Opposition should, however, before beginning any substantive discussions on this issue, consult meaningfully with the AFC.
If when the discussions commence no agreement can be reached, and recognizing the effect these non-confirmations can have on the judiciary, the Opposition should address their minds to reaching an agreement with the government on filling a lacuna within the Constitution.
The Constitution is silent where no such agreement is possible. As such, the first order of business should be an agreement between all the parliamentary parties to amend the Constitution, so as to provide for situations where there is no agreement between the President and the Leader of the Opposition.
If after a specified number of tries there is still no agreement, then it should be agreed that the matter be handed over to the relevant Service Commissions for them to decide.
