Article 127(1) of the Constitution provides as follows: “The Chancellor and Chief Justice shall each be appointed by the President, acting after obtaining the agreement of the Leader of the Opposition.” Article 128(1) underlines the power of appointment given to the President. It provides: “The Judges, other than the Chancellor and Chief Justice, shall be appointed by the President who shall act in accordance with the advice of the Judicial Service Commission.”
In answer to a question one and a half weeks ago on the delay in the appointment of a Chancellor and Chief Justice, President Ali cited the absence of a Judicial Service Commission (“JSC”). He suggested that the appointment of a JSC has to await the appointment of a Public Service Commission because the chair of the latter is an ex-officio member of the former.
President Ali appeared at that time to be of the view that it is the JSC that recommends the persons to be appointed to the positions of Chancellor and Chief Justice and that in the absence of the JSC such recommendations cannot be made. Earlier this week, 19 September, in an interview with SN, the President linked the appointments to the establishment of the JSC (“We don’t have a JSC as yet”), as if the JSC has something to do with the appointments, but did not specifically say that the recommendations were to be made by the JSC. The President said that at the “appropriate time” the appointments will be “sorted out.”
If President Ali’s understanding of the constitutional provisions relating to the appointment of a Chancellor and Chief Justice, is that they have to be recommended by the JSC, or that there is a linkage between the existence of the JSC and the appointments, his view is misconceived. Based on the constitutional provision cited above, the President needs only to identify the persons, obtain the agreement of the Leader of the Opposition and make the appointments. If the nominees are the current acting incumbents, the only requirement would be for the President to issue the necessary instruments and swear in the appointees because the Leader of the Opposition has already publicly agreed.
Articles 124 and 125 of the Constitution provide for the functions of the offices of Chancellor and Chief Justice as follows: “124. The Judges of the Court of Appeal shall be the Chancellor, who shall be the President of the Court of Appeal, the Chief Justice and such number of Justices of Appeal as may be prescribed by Parliament. 125. The Judges of the High Court shall be the Chief Justice and such number Puisne Judges as may be prescribed by Parliament.”
Sub-article (2) of article 127 provides for what are called acting appointments of a Chancellor and Chief Justice if there is a vacancy and for other reasons. In relation to a vacancy, it provides that: “If the office of Chancellor or Chief Justice is vacant…until a person has been appointed to and has assumed the functions of such office…those functions shall be performed by such other of the Judges as shall be appointed by the President after meaningful consultation with the Leader of the Opposition.”
The words “if the office…is vacant” means “in the event that.” It signifies a “contingency.” It does not contemplate a situation that has been deliberately created or is being unduly and deliberately perpetuated. Due not to the fault of President Ali, or of the PPP/C Governments, the positions have been left vacant because of PNC recalcitrance. It had refused to consent to the appointment of Chancellor (ag) Carl Singh and Chief Justice (ag) Ian Chang for over 17 years. President Granger did not make the appointments during 2015-2020. President Ali is now faced with a situation not of his making.
When the current incumbents were appointed in acting positions by President Granger it may have been intended as contingencies, until substantive appointments were made. However, substantive appointments were not made, and the acting appointments have now gone beyond the contingent and have transitioned into a degree of permanence that is not contemplated by the Constitution. The President is now required to fulfill his constitutional responsibility which he does not have the luxury of declining for any reason, including non-urgency.
In his interview with SN on the 19th, the President said that there is an acting Chancellor and an acting Chief Justice in place and since the judiciary is functioning there is no urgency to make the appointments. There is an urgency. The positions of Chancellor and Chief Justice have been vacant for more than seventeen years. The lack of alacrity or sense of urgency to fill constitutionally mandated posts which have been vacant for so long cannot withstand constitutional scrutiny.
The judiciary, along with the executive and the legislature, is one of the three branches of government. The other two branches, the executive and the legislature, will not be treated with anything near to the scant disregard and constitutional impropriety that the judiciary is being treated. If the President is hoping that delay will somehow reduce focus on the appointments, or make the issue disappear, or that different candidates will materialize, he is being unrealistic.