Consensual democracy and the judiciary

The focus of this column is upon the judiciary and it is important to note that an essential chapter in the playbook of the modern autocrat - Venezuela’s Hugo Chávez, Russia’s Vladimir Putin, and Turkey’s Recep Tayyip Erdogan - is to insidiously install loyalists in this institution (How Democracies Fall Apart: Foreign Affairs, 05/12/2016). Of course, control of the judiciary is an essential feature of all autocracies and by way of electoral manipulations over thirty years to 1992, the PNC had control of the executive and legislature, which was bequeathed it by our pre-republican Westminster constitution, and the judiciary was a pawn in its hands. So much so that positive decisions such as that which occurred in the 1979 Seeram Teemal case, in which the court decided that the withdrawal of an increment given to the sugar worker was illegal, are still revered.

The, PPP/C came to government and found a weakened but not particularly supportive judiciary that soon vitiated the presidency of the late Janet Jagan and set the PPP/C firmly on the road trying to politically dominate society. As with the PNC, the PPP/C had constitutional control over the executive and the legislature and knew that it had to have, at the very least, significant influence over the judiciary if it was to achieve its goal. Quite unwittingly I believe, the PNC substantially aided that party in accomplishing its task by allowing it considerable leverage over the higher echelons of the judiciary and thus the judiciary itself. I make these points because it appears to me that the stage is set for a recurrence of the latter process!

Understandably, given its aim the PPP/C wanted to control the judiciary. What is incomprehensible is that for a dozen years the PNCR helped it in this endeavour by believing that merely preventing permanent appointments, of the chancellor of the judiciary and the chief justice they did not want, was an acceptable solution. The PNCR simply did not understand that an acting appointment placed tremendous power in the hands of the employer and severely diminished the space the incumbents had for independent action. Often incumbents in long-term professional positions, do have dearly held professional reputations and ambitions, and given sufficient space, have been known to grow into quite effective independent operatives. However, instead of taking this kind of enlightened position, the PNCR’s approach left on the ground in the two highest judicial offices dissatisfied operatives prone to be at the beck and call of the government.

Nonetheless, while the action of the appointing parties must be condemned, there is an important lesson here for all acting incumbents and our reform enterprise. Non-appointment over such a lengthy period was a clear indication that they were not wanted by at least half of the vital stakeholders. No one should hang around for so long and we should establish stronger rules to prevent this from happening.

The USA has a sensible approach to the judiciary and judges to which we should pay more attention. The elite do not believe that judges are unbiased but hold that they are objective only within the context of their ideological biases. We now see this in President Donald Trump’s determination to stack almost every level of the judiciary with those closely aligned to his ideological disposition. This is quite acceptable, for judges live in society; they for the most part ideologically feel and differentiate as the society does and it would amount to self deception not to recognise this fact. However, in our context, particularly where political issues are concerned, what this means is that ethnicity must be prioritised in even a consensual approach to the organisation of the judiciary.

The proposal

Upon nomination by the Judicial Service Commission (JSC) all judges, including the chancellor of the judiciary and the chief justice, will be appointed by the National Assembly by consensus or if necessary upon a 2/3 majority of those present and voting. The JSC shall make such a nomination within 6 months of a position becoming vacant.

All acting appointments will be made by the JSC and no such appointment shall last longer than six months, after which the vacancy will be in the purview of the National Assembly and the incumbent will be given first preference.

Any matter having to do with constitutional review that reaches the level of High Court and beyond must be adjudicated by a panel consisting of at least 3 judges.

Important constitutional/political decisions should be made and written decisions provided in a timely fashion that ensures the completion of the judicial process before the decision is overtaken by events. Important comments As it now stands, the chancellor and the chief justice are chosen by the president and leader of the opposition who are constitutionally a part of parliament, but this is too narrow a level of participation in a consensual democracy. Consensual rules will have to and can be made to prevent delays in appointments at the level of the National Assembly.

The establishment and operation of the various service commissions will have to be reconsidered. For example, it simply cannot be acceptable for an ‘independent’ constitutional commission to be chaired by a member of the central executive committee of one of the contesting political parties!

Our law already provides for the provision of timely decisions, but this fact does not appear to prevent political decisions from arriving, if at all, long after their usefulness has expired, and the constitution should be strengthened to prevent this from occurring.

Conclusion

The emphasis of this consideration of the judiciary is in relation to aspects of its work having to do with the constitutional review process for a consensual democracy demands broader participation in these kinds of decisions which could be literally life threatening. There appears to be a national consensus that cases with constitutional/political implications should not be left to the ideological/political bias of a single judge. Attempts to improve social cohesion and gradually build a nation out of our contentious peoples requires that these types of cases be accorded far more weight than the run-of-the mill ones. Given that we have a family court, commercial court and sexual offences court, we could consider establishing a constitutional court, but to be presided over by a panel of 3 judges. Our duty is to go as far as possible to make all our people feel comfortable with the political and judicial systems and the decisions emanating therefrom.