The Guyana Bar Association (GBA) said it will continue to speak out when criticism moves beyond the boundaries of ‘fair’ and appears to be an attempt to impact on the perception of judicial independence.
In a ‘Comment to the Press’ signed by newly-elected President Teni Housty, the GBA cited a press release from the Office of the President (OP) issued on May 31, which referred to, among other things, the issue of judicial criticism.
Aspects of this were reported in the Stabroek News, the Guyana Chronicle and the Kaieteur News of June 1, but certain comments were required in the public interest, the GBA said.
It said it had noted the indication by OP that it was not in the habit of engaging in judicial intimidation but was merely engaging in judicial criticism.
The association pointed out, however, that it was important to reiterate that “from time immemorial, it has been the role and purview of every bar association to ensure that judicial officers are treated fairly and with appropriate dignity.”
The GBA said a response should be made “when the criticism displays a lack of understanding of the legal system or the role of the judge and is based at least partially on such misunderstanding.”
Moreover, a response is required “when the criticism is serious and will most likely have more than a passing or de minimis negative effect in the community” or “when the criticism is materially inaccurate,” and the inaccuracy is a substantial part of the criticism so that the response does not appear to be “nitpicking”.
The GBA asserted that these and other guidelines will continue to guide its response “to criticisms of the judiciary, as the bar continues to speak out without fear or favour against all who seek to attack the foundations of the rule of law, law and order, the separation of powers and respect for judicial independence.”
The OP had said that public criticism follows the actions, decisions, careers of public officers, including judicial officers worldwide and the judiciary should not expect to be exempt.
In the statement responding to the GBA which had expressed alarm at comments from President Bharrat Jagdeo and Home Affairs Minister Clement Rohee about the judiciary, some of which it said could be interpreted as threatening, OP said the GBA had “once again” exposed itself to public ridicule and the criticism of OP.
OP had stated also that the GBA was attempting to create a nexus between Jagdeo’s comments at the police officers conference in April and Rohee’s, which were made last month and published in the Kaieteur News, and which OP had disassociated itself from, when there was none. It said the GBA’s suggestion that a criticism of the judiciary was essentially to be viewed as a threat was ludicrous.
“The PPP/C administration does not see any challenge of the executive by the judiciary. This view has been stated repeatedly, but obviously the statement by the Office of the President and its implication has been lost and not understood by the bar association,” OP had said.
“The bar retreats into its standard posture that criticism by the administration is an act of intimidation. The fact that public criticisms follow the actions, decisions and career of public officers including judicial officers worldwide, seems lost on the bar,” it added.
“Moreover, the bar seems unable to grasp that the lack of criticism is no endorsement of professionalism and conduct in the discharge of functions, especially judicial.
“The administration is on record as recognizing the benefits of criticisms. Surely the bar association is not making a plea for the judiciary to be constitutionally exempted.”
OP had further accused the GBA of foot-dragging on a two-month-old request from the Joint Legislative Drafting Committee of Cabinet for its comments on a circulated draft bill on judicial decision making.
The exchange of words between the GBA and the administration began when Jagdeo told an audience at the police officer’s conference: “We have witnessed some element of judicial lawmaking and I hope that you will look into that to see that the judges and the magistrates abide with the laws of the country and the will of the legislature because we need a fair judiciary that is bound by the laws of the country, so we need to work on that.”
The GBA had said that the exhortation to look into and see that “the judges and the magistrates abide with the laws of the country” could be interpreted as a threat aimed at the judicial officers of this country, a notion that was improper and violated the Constitution.
“When the statement is further embellished with the words that ‘we need a fair judiciary that is bound by the laws of the country’ this suggests that the judiciary is not fair and is not bounded by the laws,” the GBA had said.
Rohee had later stated: “We now have bail applications being granted to murder accused. The judiciary has now become totally unpredictable and case law is now thrown out the window”. The GBA called this comment unfortunate and unjustified as it implied that the minister was more au fait with case law than the courts or indeed the legal profession.
Rohee’s criticism had been aimed at Chief Justice Ian Chang who had granted bail to a man accused of murdering two people.
“Such an assertion and attack on the judges and the legal profession is unacceptable and the GBA is of the considered view that the judges and the legal profession should not be made scapegoats for the failure of the law enforcement agencies to do their job of intelligently investigating and prosecuting crimes,” the GBA had said in a press release.
The GBA had said that as Guyanese we all need to understand and at the very least realize that the judicial system was staffed by human beings with flaws, but who must be presumed to be acting with professional integrity. To threaten the judiciary, it said, “is to shake the very foundations of our society and wake the beast of anarchy. These statements can be interpreted as an attempt to intimidate persons who hold judicial office and make them fearful of deciding matters in a manner that the executive does not approve.”
The GBA urged then that there be a more sober and tempered approach, which would avoid the recent utterances. What was needed instead, it said, was a commitment to revamp law enforcement systemically while working with the judiciary to achieve a common understanding for the good of the country and all of its citizens.
