Boodoosingh legally appointed as CJ

ISRAEL B RAJAH-KHAN SC

ALL THE hullabaloo and machinations by the government detractors to create an imbroglio that Justice of Appeal Ronnie Boodoosingh’s appointment as Chief Justice was contrived by acting President Wade Mark is a naked subterfuge to undermine the political directorate and the Cabinet in the performance of their constitutional mandate to have the general direction and control of the government (section 75 of the Constitution).

The government detractors are all in agreement that Boodoosingh is the right choice and they have no quarrel with his choice by Mark, but they are adamant that there was no real consultation as required by the Constitution before the appointment was made.

The country was aware that then chief justice Ivor Archie had officially and publicly declared at the ceremonial opening of the 2025-2026 law term that it was his intention to retire before the law term's end. Thus, both the Prime Minister and Opposition Leader were quite aware since early September that a new chief justice must fill the vacancy when Archie retired.

However, the country was in shock when Archie, on October 21, stated that he will be demitting office and retiring on October 22.

Mark, upon receiving and accepting Archie’s resignation/retirement missive, took immediate action and issued letters to both the Prime Minister and Opposition Leader on the appointment of a new CJ in accordance with section 102 of the Constitution, which states:

“The Chief Justice shall be appointed by the President after consultation with the Prime Minister and the Leader of the Opposition.”

Mark indicated that it is his intention to appoint one of the judges of the Court of Appeal and enquired whether the PM and Opposition Leader had any preference. They were both given extremely short notice (hours) to make their choice in writing to him.

Prime Minister Kamla Persad-Bissessar immediately send a letter to Mark stating: “I agree that Your Excellency should select a judge from the Court of Appeal bench to replace Chief Justice Archie. I have no preference.”

Opposition Leader Pennelope Beckles stated in her letter to Mark that the process of appointing a chief justice should be stopped, as she was not given enough time to consider the appointment.

Mark, however, proceeded with the swearing-in ceremony of Boodoosingh as the Chief Justice.

There is no constitutional guidelines as to how a President should conduct himself in the selection of the person to be appointed Chief Justice. And there is no constitutional guidelines as to the modus operandi of the consultation among the President, Prime Minister and the Opposition Leader before the appointment.

What is striking is that no person has ever been appointed CJ whom the sitting Prime Minister was not in agreement with.

Be that as it may, it is my considered opinion that when the occasion arises, the President will select in his own deliberate judgement the person he believes should be appointed to that exalted position under the principle of the separation of powers. It is his sole constitutional prerogative on this issue. Then the PM and Opposition Leader will be called upon to engage in meaningful consultation on the President's choice.

And if, like in the instant matter, the President did not select a particular person, but indicates a pool of people, like the Court of Appeal judges, both the PM and Opposition Leader will be entitled, as suggested by Mark, to give their considered assessment on one of the pool who they believe should be appointed CJ.

But ordinarily, as in the past with the selection of a CJ, it would be infra dig and out of place for either the PM or Opposition Leader to suggest a name to the President (if the President identifies a particular person), unless the President invites them to do so. Be that as it may, the President is not obligated and/or compelled to appoint anyone suggested by the PM or Opposition Leader, even if both are agreed on a particular person.

And I re-emphasise that under the principle of the separation of powers it is the sole constitutional prerogative of the President (after consultation with the PM and Opposition Leader) to appoint the Chief Justice. All that the President may be required to do is to civilly and politely inform them of his rationale for his choice, or he may even exercise his right not to give any explanation and/or reasons.

It is of great interest to point out that, constitutionally, both the PM and Opposition Leader could not go outside the pool of judges because that is the President’s constitutional prerogative. And he is not bound by their choice or recommendation as to whom he should choose – and that was the end of the required consultation under the Constitution.

However, I respectfully submit that in the circumstances of this matter, more time should have been granted to the Opposition Leader to identify a judge. Justice must not only be done, it must manifestly appear to be done.

And, like it or not, when the acting President sagaciously appointed Boodoosingh, it was in keeping with the Constitution, the supreme law of the land.

And of note, is one writer really of the opinion that the purported consultation between Mark and Beckles, who was just given hours to give her view on what the writer called the then nameless appointee, was illegal, he must take this matter before the courts for a declaration that the consultation was illegitimate.

Or are his comments on consultation really meant to undermine the political directorate and the Cabinet in the performance of their constitutional mandate to have the general direction and control of the government?

Israel B Rajah-Khan SC is the president of the Criminal Bar Association