Dear Editor,
A state heading to war with itself should at least have effective and appropriate equipment to monitor the anticipated engagements.
Article 122 of the Constitution of the Cooperative Republic of Guyana states, “All courts and all persons presiding over the courts shall exercise their functions independently of the control and direction of any person or authority; and shall be free and independent from political, executive and any other form of direction and control.”
The frequency and vehemence with which the Attorney General, acting in his capacity as the sole advisor to the executive, has initiated and prosecuted legal proceedings against the legislature in his quest to have the third arm of the state, the judiciary, determine matters which are within the jurisdiction of the legislature, have placed a significant burden on the judiciary.
From the commencement of the life of the tenth parliament, it became apparent that the executive were not only unhappy with their lack of control of this arm of the state but their preferred method of engagement with the legislature was open hostilities to be fought out and determined in the arena of the state’s only remaining arm, the judiciary.
On the occasion of the election of the new speaker of the tenth parliament the subliminal invitation from the Prime Minister to the newly elected Speaker was ‘swords.’ I have no doubt that the Prime Minister must have appreciated that to enjoy a good fencing championship one ought to at least ensure that one has objective, independent umpires to whom one can appeal in the event of any difference of opinion as to what constitutes ‘fair play.’
Whenever the executive elects to go to war with the legislature, the remaining arm of the state should at least be strong, independent and confirmed in their positions as arbiters, lest at some stage during or after the battle the umpires themselves become part or the source of the new contretemps.
Article 127 (1) of our constitution provides that the Chancellor and the Chief Justice shall each be appointed by the President, acting after obtaining the agreement of the Leader of the Opposition.
And in the event of the inability to secure the agreement of the Leader of the Opposition, Article 127 (2) of the constitution provides “If the Office of Chancellor is vacant … then until a person has been appointed to and has assumed the functions of such office… the 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.”
There is some considerable distance between “obtaining agreement” and “meaningful consultation.”
The office of Chancellor the Judiciary became vacant upon the ascension of the Honourable Justice Bernard to the Caribbean Court of Justice in 2002. Thereafter successive presidents and leaders of the opposition have been unable to agree on the appointment of a Chancellor. The consequence of this for Guyana is that we currently have an acting Chancellor and Acting Chief Justice at a time when two arms the state are about to engage in open hostilities before the third.
To compound this already difficult situation, is the fact that the acting Chancellor has assigned to the acting Chief Justice the hearing of all constitutional matters at first instance.
So as the state goes to war with itself we now face the prospect of the third arm of the state being exposed to the possible indignity of allegations of potential bias.
In the publication The Independence of the Judiciary. The view from the Lord Chancellor’s Office, Professor Robert Stevens opined that “the prospect of promotion (had) sullied the purity of the relationship between the Judiciary and the executive.”
Lord Bingham of Cornwall in his book The business of judging opined, “In modern democratic societies judges continue to occupy a privileged position, but for quite different reasons. Now privilege springs from public recognition that democratic government and society as a whole can only function fairly and properly within a framework of flaws, justly and fairly administered by men and women who have no obligation save to justice itself.”
Lord Bingham continued at page 61: “Any mention of judicial independence must eventually prompt the question independent of what? The most obvious answer is, of course, independent of government. I find it impossible to think of any way in which judges, in their decision making role, should not be independent of government. But they should also be independent of the legislature, save in its law making capacity.”
The inability to achieve consensus on the identification of candidates to hold the permanent and secure posts of Chancellor and Chief Justice, is unlikely to engender confidence in the administration of justice in the light of the executive’s declared hostilities against the legislature.
In order to avoid the third arm of the state falling prey to the current difficulties and mutual suspicions which have metastasized in the other organs of the state, we urge that as a matter of urgency the candidates for appointment to the principal positions in the judiciary be identified and appointed in confirmed positions.
Yours faithfully,
C A Nigel Hughes
