To act or not to act: (Un)Leashing the chief justice?

Delroy Beckford

Sunday, February 25, 2018

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The appointment of an acting chief justice took most people by surprise, especially because there is consensus that the choice is without question the choice for the actual post. Then came a flurry of criticisms because the move was seen as unconventional, conditions were attached to the decision to appoint to the actual post and, for most, the appointment smacked of an attempt to interfere with judicial independence suggesting conduct unconstitutional on the part of the prime minister.

One argument goes that section 98 of the constitution, when read in conjunction with section 99, under which the acting appointment was made, indicates that the prime minister is to appoint a chief justice, not an acting one, because section 99 is to be read as covering situations whereby the incumbent in the office cannot discharge the duties involved, for whatever reason. The term “vacancy” in section 99 is to be read in the context of the circumstances provided for in the section when an incumbent cannot perform.

I must confess that at first blush this argument is very attractive and compelling. But then other questions began to emerge, suggesting some nuances. If the appointment had been made under section 98 of the constitution, would the prime minister be entitled to consider, in interviews or otherwise, before appointment, whether the person to be chosen could perform the functions of the post? And if the answer to this question is yes, would he not also be entitled to consider, before final appointment to the post, whether the person to be chosen, whether acting in the post or not, could perform the functions of the post, since the same conditions for appointment under section 98 would presumably be the same conditions for appointment after acting under section 99?

For those arguing unconstitutionality, there is some leg of support in the scheme of the constitution concerning the judiciary. The prime minister is not afforded an opportunity to interfere with judges' independence. In the main, he is involved in the process nominally before the appointment of a chief justice, and if there is to be dismissal of the chief justice for incapacity, etc, or misbehaviour, except that his involvement in the latter is for the selection of the members of an impartial body to decide on the question of incapacity, etc, again some testimony to the constitution frowning upon executive interference.

So this limited involvement may suggest that any other involvement, such as setting conditions for performance before appointment, is executive interference in judicial independence. Now if this argument is persuasive, it means that when the prime minister decides on an appointment under section 98 after acting has taken place under section 99, the incumbent in the acting post is not to be considered for the actual post, but a fresh slate of candidates ought to be considered, because the setting of conditions ought not to have been explored in the first place. Choosing the incumbent may suggest that he is already compromised by satisfying the conditions required to be met, which is already seen as political interference.

But what are these conditions we are talking about, and is the prime minister any more qualified to say when these are met? Let's take improvement in the rule of law. What does this really mean? Does it mean that decisions emanating from the Supreme and other courts are not in accordance with the rule of law or less so than by the consideration of other factors? And what about the timely delivery of justice as a factor? What does this mean beyond an appeal to platitudes?

It turns out that these conditions, however vague, if considered satisfied by the prime minister could be regarded as advancing the cause of justice. No one would argue that enhancement in the rule of law, whatever that is, is executive interference, assuming a shared understanding of the concept that imports good judicial governance. We think of executive interference as bad if it results in the rule of law being compromised, not when it is enhanced, if it results in decisions being based on factors other than the law, or decisions grounded in judicial activism.

All these are contested concepts, let alone knowing when they are satisfied or breached. It may be that the furore is more directed at the prime minister's statement interpreted as putting the acting incumbent on probation. It is suggested that this smacks of political interference, given that the prime minister has expressed confidence in his choice so that he may be taken to be requiring more than what he has already agreed as the proper qualifications being met.

But that unreserved confidence was expressed in the choice for the post is expected, given the unchallenged calibre of the incumbent, but also because it would be unwise to appoint someone to act in a post if there is no confidence that the person so chosen can perform the functions of that post.

To return to the conditions, leaving aside the issue of their vagueness for the moment, is the prime minister entitled to consider these in his choice of appointment to the post, prior to appointment, if done under section 98 of the constitution? If the answer is in the affirmative, it would seem counter-intuitive to suggest that these conditions cannot also be considered post the period of the acting appointment as a basis for eventual appointment under section 98, whether in respect of the incumbent or another person.

On the question of whether the appointment ought to have been done under section 98, and not 99 of the constitution, given that the prime minister expressed confidence in his choice, it bears noting that section 98 specifies who must make the appointment, but not when. There is no requirement for immediate filling if there is a vacancy. However, it seems inconceivable that there should be any indefinite acting because there is an obligation to appoint under section 98.

Sometimes, however, the legitimacy of a principle or an interpretation advanced regarding a provision is best tested by appealing to extreme cases.

What if no one applied for the position? What if those who applied were not considered as satisfying all the necessary criteria? These questions address the issue of 'immediacy' under section 98.

Now the fact that a suitable candidate is found is not a requirement for immediate appointment under section 98 if there is still some reservation. This may have been the thinking for use of section 99, for there is no question that a vacancy exists upon retirement to fit the appointment within 99. Nonetheless, at bottom, it seems that no condition should be attached to the acting post — at least not the ones suggested, as these are too vague for measurement. No one would be able to fulfil them, and the prime minister would be tending to an indefinite acting appointment, which is not the intention of the constitution.

Delroy S Beckford, PhD, is an attorney-at-law. Send comments to the Observer or

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