Regarding presidential appointments in the new constitution Part 1

By Foday Samateh Nothing exemplifies the imperial presidency and at the same time undermines the spirit of separation of powers in the 1997 Constitution (the current constitution) as much as the president’s unchecked power to make key appointments across the executive and judicial branches. The president hires the vice president, cabinet ministers, and almost all ranking officials in the public service without any oversight. The appointees could be just anybody. The only thing that really matters is the president likes them. No mechanism is in place to independently determine their qualification and moral competence for the job. And the president reserves the unilateral power to fire most of them at anytime. The only exemptions to this absolute presidential power of hiring and firing seem to be the members of the Independent Electoral Commission (IEC), judges and the ombudsman. The operative word here is seem. And seem, as Hamlet observes in the great play of the same name, isn’t always what it seems to be. Its deceptive appeal is presenting appearance as substance. In the case of the IEC, the president appoints the members “in consultation with the Judicial Service Commission and the Public Service Commission”. This seems the president must deliberate over appointments to the electoral commission with these two commissions. But the impression here is nothing more than a constitutional conceit. The president appoints the Public Service Commission (PSC) and the majority of the Judicial Service Commission (JSC). Involving these two commissions in the president’s appointment authority is one of the many glaring flaws in the Constitution. Given the great disparity in the power dynamic between them and the president, it defies logic under any circumstance. Let’s focus on the PSC for now and then the JSC for the appointment of judges. Though the PSC is an independent body, it operates under the executive branch. This is worth noting since the president is the head of the executive branch. And of course, executive power/authority flows from the president downward, not the other way around. The basis of the PSC’s independence is to protect it from undue influence on the part of the president or others who may be acting at the president’s behest. If the president is rightly restrained from telling the PSC how to do their job, it stands to reason that the PSC should also not be in the business of telling the president what decisions to take. Besides, requiring the president to consult with the PSC (and the JSC) on the appointment of IEC implicates two practical, though contrasting, problems. Given the disproportionate power imbalance between these two commissions and the President, the commissions are far more likely to simply defer to the president’s wishes, which renders the consultation a constitutional smokescreen for unilateral presidential power. The alternative is the commissions would have an open and frank give-and-take with the president; or, if rather unlikely, they would bear true faith to their constitutional obligation on this matter and stand up to the president when the occasion calls for it. Either way, this arrangement is functionally tenuous, and therefore untenable. The PSC and the JSC as inferior powers cannot reasonably be tasked with holding the president, a superior power, accountable. The president should not be consulting with the commissions for the sake of getting them on board with the appointments. On the other hand, a meaningful consultation in this case would entail the two commissions sharing decision-making authority with the president when it comes to appointing the IEC. In other words, theoretically at least, they can hold up or even veto the president’s decisions. That will be subjecting a superior power to defer to inferior ones. Such a course of events will undermine not just the authority of the president, but also the underlying power structure of the Constitution, the mandate of elected Office and democracy itself. The president should answer to only the Legislature and the Courts — the two institutions that enjoy comparable constitutional stature as the president. As such, the PSC and its corresponding commissions need to be kept out of presidential decisions. The appointment of judges raises an even greater concern. The president appoints the Chief Justice “after consultation with the Judicial Service Commission.” “Consultation” in this context is strictly a formality. Even if the JSC advises the president to not appoint someone as the Chief Justice, the President doesn’t have to comply. This isn’t some selective or prejudiced reading of the relevant constitutional provision. The Constitution explicitly stipulates in section 231 (4): Where under any provision of this Constitution any person or authority is authorised or required to exercise any function after consultation with any other person or authority, the person or authority first referred to shall not be required to act in accordance with the advice of that person or authority. Since the president is only obligated to consult but not to heed any advice, there can be no denying that the president has a unilateral power to appoint the chief justice. As for all other judges of the superior courts, the president appoints them “on the recommendation of the Judicial Service Commission.” Here, it’s safe to say, the president is required to appoint these judges from the JSC’s list of recommended candidates. The apparently different procedures for appointing the chief justice and the other judges are, separately and jointly, flawed. If either procedure is justifiably adequate in itself, why can’t it be applied uniformly in both cases? If the president can be trusted to appoint the chief justice irrespective of the advice of the JSC, why can’t the president be trusted to do the same for the other superior court judges? And conversely, if the president is required to act on the JSC’s recommendation in appointing the other superior court judges, why is the president exempted from the same in appointing the chief justice? Furthermore, the problems that are inherent in the JSC and PSC’s involvement in the appointment of IEC rear their ugly heads in the JSC’s involvement in the appointment of judges. First, the president appoints four of the six members of the JSC — namely, the chief justice, a judge of the superior court, the solicitor general, and any other appointee of the president’s own choice. The attorney general, who is appointed by the president, appoints the fifth member in consultation with the Gambia Bar Association. The only member of the JSC the president plays no role in appointing is the National Assembly’s appointee. It goes without saying the president’s appointees comprise the majority on the JSC. And it needs to be further pointed out that the president has the power to fire at least three key members by removing them from their respective offices through which they sit on the JSC. In the light of these factors, can there be any realistic expectation that they will provide robust oversight concerning the president’s other judicial appointments? Second, while there is need for Judicial Service Commission for the judicial branch, as there is Public Service Commission for the executive branch, the JSC’s composition and its role in the appointment and removal of judges are gravely misconceived. They present too many problems for the independence of the judiciary. The JSC, unlike the PSC, isn’t a component of the executive branch. Therefore, the president should play no role in the appointment of the JSC, and officials serving in the executive branch shouldn’t serve on the commission. The Constitution foresaw the need for separation of powers on this matter but addressed it only halfway. It forbids members of the legislature from serving on the JSC. The same restriction should apply to officials of the executive branch as well. Oh, by the way, why should the president appoint the Judicial Secretary who is to serve as the principal assistant to the Chief Justice? To appreciate this constitutional absurdity or arbitrariness is to imagine the National Assembly or the Supreme Court appointing the President’s Cabinet Secretary. These presidential appointments to the third branch of the government are antithetical to separation of powers and the independence of the judiciary. To reiterate an earlier point, the JSC, like the PSC, should have no say in presidential decisions. They should have no responsibility in the appointment of judges except when the president voluntarily asks for their advise or recommendation. The JSC should be limited to assisting the chief justice staff and administer the judicial branch. Telling the President who should be appointed judge or removed as a judge should no longer be their duty. The president as the head of the executive branch and the JSC as a sub-body in the judicial branch should have nothing to do with each other. In addition to the power imbalances that exist between the two, any level of involvement they have is fraught with conflicts of interest that could have deleterious effects on the justice system. Third, judges are as crucial to a democratic system of government as the legislators and the president are. They are the judiciary’s college of cardinals, if you will, with the chief justice as the pope. In their unique duty to interpret the law, they exercise the power of determining whether laws passed by the legislature, and the actions and decisions of the president are constitutional or not. They settle legal disputes between citizens, between citizens and the state, between private interests, between private interests and citizens, between private interests and public interests, between private interest and the state, between localities and the state, and between the executive and legislative branches, among other things. No case or controversy, from the most personal to the most public, escapes the reach of their consideration or the the effect of their judgment. And nothing is more understated or unacknowledged than the fact that, though the legislators pass the laws and the president executes the laws, the law actually is what the judges say it is. Individual, civic, political, and property rights are only as broad as the judges’ interpretation of the law. That’s why who is appointed a judge is as important as who is elected a legislator or president.]]>