He­len Dray­ton

What is le­gal isn’t nec­es­sar­i­ly le­git­i­mate if the process to­wards a de­sired end lacks eth­i­cal jus­ti­fi­ca­tion. Sim­i­lar­ly, what is un­eth­i­cal isn’t nec­es­sar­i­ly il­le­gal. Le­git­i­ma­cy en­com­pass­es broad­er val­ues of eth­i­cal pro­fes­sion­al­ism and so­ci­etal ac­cept­abil­i­ty. There­fore, strate­gies used to achieve a goal, whether po­lit­i­cal or apo­lit­i­cal, may be con­trary to the spir­it of the Con­sti­tu­tion, the covenant with the peo­ple.

The in­ter­ests of po­lit­i­cal par­ty sur­vival and the pur­suit of pow­er of­ten shape po­lit­i­cal be­hav­iour, and sup­port­ers and ac­tivists aligned with any po­lit­i­cal group and its philoso­phies of­ten be­come blind or ig­nore con­sti­tu­tion­al vi­o­la­tions by their group lead­ers and fol­low the lead­er­ship’s ex­am­ple by at­tack­ing any­one who dares to chal­lenge un­de­mo­c­ra­t­ic be­hav­iour. The group thinks in bi­na­ry terms; if you don’t agree with us, you’re against us.

Em­bed­ded in such group­think is pop­ulist pol­i­tics, with di­vi­sive rhetoric that plays on peo­ple’s prej­u­dices, as­pi­ra­tions, and fears, us­ing spu­ri­ous claims to mud­dy truth in jus­ti­fi­ca­tion of ir­re­spon­si­ble ac­tions. There are nev­er-end­ing taunts, such as, “Where were you when the last gov­ern­ment did the same thing?” Obliv­i­ous to an­oth­er truth, that they were blind and deaf to voic­es of rea­son, and that vot­ers kicked out the for­mer gov­ern­ment for sin­ning by com­mis­sion and omis­sion. Noth­ing lasts for­ev­er.

It is false to char­ac­terise the pro­ce­dure for ap­point­ing the new Chief Jus­tice, Ron­nie Boodoos­ingh, less than a day af­ter the re­tire­ment of his pre­de­ces­sor, Ivor Archie, with the spe­cious ar­gu­ment that Jus­tice Archie was sim­i­lar­ly ap­point­ed. The is­sue is not that the ap­point­ment was made a day af­ter Jus­tice Archie’s re­tire­ment.

Rather, the is­sue is the fla­grant vi­o­la­tion of the con­sti­tu­tion­al process for the Pres­i­dent to “con­sult” with the Prime Min­is­ter and the Op­po­si­tion Leader be­fore the ap­point­ment of a Chief Jus­tice.

Back in 2007, records show that the re­tire­ment date of Archie’s pre­de­ces­sor, Chief Jus­tice Sat­nar­ine Shar­ma, was long known and there were pri­or con­sul­ta­tions by then Pres­i­dent George Maxwell Richards with Op­po­si­tion Leader Bas­deo Pan­day and Prime Min­is­ter Patrick Man­ning, in ac­cor­dance with the Con­sti­tu­tion. The Con­sti­tu­tion re­quires con­sul­ta­tion and not nec­es­sar­i­ly agree­ment.

The re­cent ap­point­ment of Jus­tice Boodoos­ingh as Chief Jus­tice rais­es con­sti­tu­tion­al con­cerns, as it abused both the let­ter and spir­it of the Con­sti­tu­tion. I am not ques­tion­ing Chief Jus­tice Boodoos­ingh’s suit­abil­i­ty, rather the process.

Giv­en that there were pri­or ap­provals by all rel­e­vant par­ties, the Pres­i­dent, the Prime Min­is­ter and the Leader of the Op­po­si­tion, for a judge to act in the ab­sence of the for­mer CJ Archie, who was to be out of of­fice some­time in No­vem­ber, there was no rea­son for the haste, re­sult­ing in the lack of prop­er con­sul­ta­tion.

The con­sti­tu­tion­al re­quire­ment of con­sul­ta­tion is not a sym­bol­ic ges­ture. It is a sub­stan­tive safe­guard in­tend­ed to en­sure trans­paren­cy, in­clu­sive­ness, and pro­tec­tion against uni­lat­er­al de­ci­sion-mak­ing in re­la­tion to the head of the ju­di­cia­ry. Much has al­ready been said about the se­quence of events lead­ing to the swear­ing in of Chief Jus­tice Boodoos­ingh, even be­fore the un­ac­cept­ably short time­frame for con­sul­ta­tion had ex­pired. Suf­fice it to say that the act­ing Pres­i­dent Wade Mark de­mand­ed a re­sponse from the Op­po­si­tion Leader Pen­ne­lope Beck­les in re­la­tion to Jus­tice Boodoos­ingh with­in a mat­ter of hours.

The con­sul­ta­tion re­quire­ment isn’t a dis­cre­tionary process. It serves as a coun­ter­bal­ance to pow­er con­cen­tra­tion and min­imis­ing the op­por­tu­ni­ty for politi­ci­sa­tion of the Chief Jus­tice po­si­tion. The process must not on­ly ap­pear fair but must em­body fair­ness in sub­stance.

Nei­ther is con­sul­ta­tion an in­vi­ta­tion to the Op­po­si­tion Leader to “pick” a nom­i­nee, nor a per­func­to­ry no­ti­fi­ca­tion that the Pres­i­dent has al­ready de­cid­ed. Rather, it is a struc­tured ex­change in­tend­ed to se­cure rea­soned per­spec­tives be­fore the Pres­i­dent makes a fi­nal de­ci­sion.

Fur­ther, the Con­sti­tu­tion em­braces de­mo­c­ra­t­ic process­es; the peo­ple vot­ed for the Prime Min­is­ter and the Op­po­si­tion Leader, and when the Pres­i­dent con­sults with the peo­ple’s chief rep­re­sen­ta­tives, so too, the peo­ple are de fac­to con­sult­ed.

To vi­o­late the con­sti­tu­tion­al process is no tri­fling mat­ter and fling­ing in­sults at those who call out a man­i­fest­ly im­prop­er ac­tion is con­cern­ing. Of note is the act­ing Pres­i­dent’s tran­si­tion from a par­ti­san po­lit­i­cal body. It is a del­i­cate bal­ance re­quir­ing sound judge­ment, trans­paren­cy, neu­tral­i­ty, re­straint, and re­spect for the in­sti­tu­tion­al in­de­pen­dence of the pres­i­den­cy. Those who take an oath to up­hold the Con­sti­tu­tion must do so in sub­stance as well as in form. They must act to pre­serve the del­i­cate bal­ance among the branch­es of gov­ern­ment.

In the ab­sence of any eth­i­cal jus­ti­fi­ca­tion for the vi­o­la­tion, it stands as a trou­bling event in de­gen­er­a­tive con­sti­tu­tion­al prac­tices.