Procedures for Selecting Judges

Procedures for selecting judges are fairly standard across the region, with only minor variations among individual territories. Generally, appointments are made by the Head of State acting on advice, but it

is in the source of that advice that the differences are to be found.

Ultimately, the strategy was to minimize the role of the executive in the process, hence the requirement of consultation with the Leader of the Opposition as in Barbados, or more meaningfully as adopted elsewhere, the creation of a specific Commission to make recommendations. For countries with the latter approach, the composition of this Judicial Services Commission is therefore critical, given the integral role it plays in the process of appointments. While it is difficult to find a norm across the Caribbean, generally this Commission is composed of five to six members, chaired by the Chief Justice and for the remainder comprising one other Judge recommended by the Chief Justice, the Chairman of the Public Service Commission, and two or three members appointed by the Governor General on the Prime Minister’s recommendation.^[831] The success of these procedures in achieving their desired outcome depends heavily on the integrity of various office-holders, such as the Prime Minister, Chief Justice and various individuals appointed to the Commission.

A. Political Control of the Selection of the Head of the Judiciary

Nowhere in the Caribbean are the tensions between executive and judiciary better highlighted than in Guyana, where successive post­independence governments have displayed a shrewd appreciation of the crucial role of selection procedures for fashioning a compliant judiciary. When the remaining avenues of appeal to the Privy Council were abolished in 1973^[832] and the Guyana Court of Appeal became the country’s final appellate court, the Burnham regime (which had just installed itself by a massively rigged election)^[833] took the opportunity to create the position of Chancellor of the judiciary. On the surface, this was presented as mere nomenclature — instead of a President of the Court of Appeal (as in Jamaica), Guyana would have a Chancellor. The motive for the position, however, lay in a far more sinister and corrupt objective. At the time the Chief Justice was Sir Joseph Luckhoo, a Guyanese of East Indian descent and a jurist of unimpeachable character, on both counts unacceptable to the increasingly dictatorial Forbes Burnham. Burnham’s solution was thus to create this new position of Chancellor as head of the judiciary, to which he appointed Sir Kenneth Stoby, then Chief Justice of Barbados. Through these machinations — all effected through superficially lawful procedures — Luckhoo CJ was effectively demoted while Burnham openly signalled the role he envisaged for the judiciary in the post-colonial era.

Almost 30 years later, and despite the return of free and fair elections or democracy in Guyana, a similar drama came to be played out once again. Upon the retirement of Cecil Kennard and his replacement by Madam Desiree Bernard as Chancellor of the judiciary, the next Judge in line for the position of Chief Justice was Madam Justice Claudette Singh, but she was passed over in favour of Justice Carl Singh. There are advantages to selecting only the best from an available list of candidates for promotion to a higher position, but given that the overlooked Judge had 14 years’ experience while the favoured one possessed a mere six, such a move could be justified only by reason of uncommon brilliance in one or unacceptable incompetence in the other — neither of which seemed to be the case.

B. The Inefficacy of Consultation Requirements

These tribal politics are not confined to Guyana, and have been paralleled elsewhere in the Commonwealth Caribbean. In most countries, the degree of influence enjoyed by the executive is as a result of the inherent vagueness of the requirement of �consultation’ prior to making these appointments. As opposed to the requirement of �consent,’ consultation imposes a standard that can be easily met, and functions at best to give a superficial gloss on the selection process. It does not assure meaningful participation and still less does it ensure that input once received will be influential. In practice, even where there has been a failure to consult, Caribbean courts have been slow to acknowledge any irregularity in the process. In Whitfield v AG,^[836] the issue under consideration was the validity of the extension of term granted to the incumbent Chief Justice of The Bahamas, who had reached the constitutional age for retirement.

In Belize, where the constitution actually specifies what consultation is to entail, being �a genuine opportunity to present his or her view before the decision or action...is taken,’^[837] such particularization was still not enough to restrain the executive. On the eve of national elections scheduled for 27 August 1998, the government hastily made several appointments to the judiciary, including that of Chief Justice, without consulting the Leader of the Opposition as constitutionally required. In fact, the Opposition Leader was contacted prior to the appointments, but even as the parties were exchanging correspondence as to a mutually convenient date to meet, a Chief Justice was sworn in on the day before the elections even though there had been no consultation. A constitutional challenge subsequently brought against the appointment of the Chief Justice succeeded on the ground that the procedure specified in the constitution had not been followed; thus, there was never a valid appointment to begin with.^[838] Meerabux J had strong words for the Prime Minister’s timing of the judicial appointments:

Such a course of action is unheard of in a parliamentary democracy based on the Westminster model where the government of the day after the issue of the Writ of Elections acts merely in a caretaker capacity and refrains from taking any major decisions.

One is driven to conclude from these events that constitutional provisions by themselves are not sufficient to restrain an executive bent on creating a sympathetic judiciary, and certainly not any that require

- as did Guyana’s and many others in the Commonwealth Caribbean

— mere �consultation’ with the Leader of the Opposition. Ultimately, consultation imposes the most minimal of requirements, one in which process defers to personality — that is to say, political nepotism in appointments can only be avoided if those holding the power are prepared to exercise it responsibly and honourably. The solution adopted by many of the Commonwealth Caribbean countries in vesting the responsibility for appointments in a Judicial Services Commission is also illusory, since members of the Commission are appointed by the Prime Minister and invariably end up being persons sympathetic to his or her cause and prepared to do his or her bidding.

C. Consent Requirements

In recognition of, and partly to address, these deficiencies, the relevant provisions of the Guyana Constitution governing appointments to the higher judiciary were amended in 2001. Whereas under the 1980 arrangements the appointment of the Chancellor and Chief Justice could be made by the President after consultation with the Minority Leader, under the new procedure the actual agreement of the Leader of the Opposition became necessary.^[840] Requiring consent, however, is premised on the existence of a mature political climate, and the experience elsewhere in the Commonwealth Caribbean was not encouraging. In the OECS, the appointment of the Chief Justice of the Court of Appeal requires consensus from the member countries, a requirement that was to prove insuperable the last time that a vacancy arose in this office. A protracted impasse ensued because Brian Alleyne, the candidate next in line, was unpalatable to Grenada, one of the OECS member states.

In Guyana, vacancies in the top judicial positions opened up for the first time after the 2001 constitutional amendments when Chancellor Desiree Bernard resigned in March 2005 to take up a seat on the Caribbean Court of Justice. Claudette Singh was by then the longest serving judge, but Carl Singh was now senior to her having previously been appointed Chief Justice. Like before, he remained the President’s choice, but the Leader of the Opposition favoured Claudette Singh, and as it turned out no agreement could be reached. In this battle over the Singhs, the two functionaries responsible for making the decision obdurately stuck to their respective choices and at the time of writing - more than four years after the opening of the vacancy — the position of Chancellor remains substantively unfilled.

The pendulum, then, had swung to the other extreme in Guyana — from poor governance to none at all. As experience has shown both in the OECS and now Guyana, requiring consensus prior to making an appointment can be equally counter-productive, for in a politically immature society it is a recipe for paralysis. In the meantime, pursuant to his power in article 127(2) — which only requires �meaningful consultation’ with the Leader of the Opposition — the President appointed Carl Singh to act as Chancellor (thereby underscoring the meaninglessness of that requirement). One month later, the President announced publicly that he had established a search committee to identify a suitable candidate for the position of Chief Justice. This made it clear that Claudette Singh had no future in the Guyana judiciary; but personalities aside, this announcement of a search committee betrayed a flagrant disregard of the constitutional procedures. This was exposed by the Leader of the Opposition who claimed that the President refused to discuss the names of his candidate for Chief Justice or even to reveal the persons on the search committee. If true, this was not even �consultation,’ much less a process designed to achieve agreement as is constitutionally required.^[842]

After more than a year of this impasse, with Carl Singh performing the functions of both Chancellor and Chief Justice, public interest litigation was initiated in which a determination was sought as to the constitutionality of one person simultaneously holding both offices, as well as a declaration that the appointment of Carl Singh CJ to act as Chancellor had become unconstitutional by his so continuing to act for more than a year. In a decision handed down one year later,^[843] the trial judge held on the first point that the spirit and intent of the Constitution does not permit the simultaneous holding of the offices of Chancellor and Chief Justice. Thus, while performing the functions of Chancellor pursuant to article 127(2), Carl Singh could not at the same time function in his substantive role as Chief Justice. In arriving at this decision, Ramlal J approached the issue as a simple one of construction, examining a number of constitutional provisions. From article 123(1), which states that the Supreme Court �shall’ consist of a Court of Appeal and a High Court, and article 123(2) which states that �each of those courts shall be a superior court of record,’ Ramlal J deduced a clear intention to provide separate and distinct courts; while from article 124, which sets out the composition of the respective courts, he found that the offices of Chancellor and Chief Justice must be held by separate persons.

Ramlal J refused the second declaration, however, holding that once an appointment to any office was regularly made, it could not thereafter become unconstitutional merely by its holder performing functions outside of the statutory mandate. Somewhat obscurely he added that the functions can become unlawful, but not so the appointment itself.^[844] Nonetheless, he did conclude that the �spirit’ of the Constitution did not envisage such long delays in filling these offices, and he held that the failure to appoint a substantive Chancellor for such a prolonged period constituted a violation of article 122A(1) of the Constitution by the President and the Leader of the Opposition. That provision reads:

All courts and all persons presiding over the courts shall exercise their functions independently of the control and direction of any person or authority; and shall be free and independent from political, executive and any other form of direction and control.

Ramlal J rejected an argument based on the protracted length of time in which the relevant politicians had failed to come to an agreement. According to him, delay was irrelevant since neither the Constitution nor any other law laid down any time limit for the period of an acting appointment or within which agreement had to be reached on a successful candidate.^[845] In so ruling, the judge adopted a very formalistic approach to the dilemma since the mere absence of a time limit in the Constitution for the making of a critical appointment could hardly be decisive. As Professor Simeon McIntosh has argued, constitutional provisions are not to be read univocally, that is to say provisions cannot be plucked out and interpreted in isolation.^[846] This is entirely consistent with the fundamental nature of constitutions and the dynamic approach called for in their interpretation. The mere absence of a time limit in the text cannot be an insuperable obstacle. What the judge ought to have considered were factors such as the role of a constitution in establishing institutions of government, the central importance of the judiciary under Guyana’s unique socialist constitution with its enlarged executive powers, and the general principle of judicial independence at the root of all the detailed provisions governing the appointment, conditions, and tenure of members of the judiciary. In other words, the court could have legitimately been guided by those implicit constitutional norms that promote the separation of powers and, by extension, judicial independence, in order to invalidate the acting appointment.

There is, besides, ample precedent elsewhere for looking beyond the bare text. In Reference re Remuneration of Judges of the Provincial Court (PEI), the Supreme Court of Canada struck down several provincial measures reducing the salaries of provincial judges as unconstitutional on the ground that they violated the principle of judicial independence.^[847] Various provisions in the text were invoked, but ultimately the majority affirmed that judicial independence is �at root an unwritten constitutional principle, in the sense that it is exterior to the particular sections of the Constitution Acts.’^[848] Similarly, in the Guyanese case, the trial judge could have legitimately found the situation complained of by the applicants - an acting appointment in the head of the judiciary for close to three years and continuing — to be unworkable, inimical to good governance and in violation of the fundamental constitutional norm of judicial independence.

D. Acting Appointments

One of the most effective guarantees of judicial independence is the fact that judicial appointments are made until retirement, a condition acknowledged by a high level colloquium of Commonwealth judges in 1998.^[849] This permanency, save for specific situations in which removal may occur, insulates the office-holder from political pressure and any obligation — real or perceived — to please the executive. By contrast, an acting appointment places the judge in a perpetual state of probation, and demands strength of character in order to rule fearlessly. Hanging over the judge’s head is the unspoken possibility that rulings adverse to the state would result in non-confirmation. As it has been succinctly put by the Lord Irvine, Lord Chancellor of Britain, �If judges depend on the goodwill of the government for their continuing (and here I would add extended) employment, then they may find themselves unable to resist political or other improper interference in individual cases.’^[850]

Aside from these cases, the practice of long acting appointments in Guyana is not confined to situations of necessity such as this one where agreement could not be reached — a fact regarding which the trial judge could not have been unaware.^[851] In 2007, when this decision was handed down, a staggering five out of a total complement of 11 puisne judges were holding acting appointments. Two of those judges had by then been acting in excess of five years, one of whom retired in 2008 without ever being confirmed. Acting appointments for protracted periods are generally inimical to fearless, independent performance. Further, as pointed out by Lord Irvine, by subjecting the judge to the pleasure of the executive for permanent employment, the judge’s ability to render independent judgments is compromised. This is, therefore, unconstitutional since judicial independence is explicitly provided for in the Guyana constitution. Arguably, the position should be no different elsewhere in the Commonwealth Caribbean where the constitutions provide for this by implication.

Thus, despite the painstaking detail of Commonwealth Constitutions, those provisions standing alone have been of limited value across diverse jurisdictions in securing a neutral appointment process for judicial officers. The difficulties have been compounded in the more highly divided societies where to the prevailing political immaturity one can add other variables related to race and ethnicity. Appeals to implicit constitutional norms or the core values underpinning the constitutions may therefore have a valuable role to play in their interpretation, and ultimately in promoting certain key goals such as judicial independence.

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