The Executive should be “marginalised” in the process of selecting and appointing judges, according to Senior Counsel Miles Fitzpatrick who has argued that the current constitution makes it virtually impossible to have a fully independent judiciary.
“The whole area of judicial independence should be reviewed in Guyana. Given the Burnham style Presidency that was criticized by the then opposition but later embraced by it after it won the 1992 election, it is virtually impossible to have a fully independent judiciary,” Fitzpatrick said at a function to honour a number of attorneys last Friday. The ceremony at the George-town Club was organised by the Guyana Bar Asso-ciation (GBA) and the Guyana Association of Women Lawyers. Ten senior and 28 attorneys-at-law who recently qualified to be admitted to practise law in Guyana were recognised.
Fitzpatrick, who delivered the charge, asserted that a Head of State who is not part of the party political fray and who can resolve any political deadlock in such matters is essential to enable the judiciary to move forward out of its present state.
“Without a Head of State that does not belong to, much less lead, a political party, political considerations can never be separated from the assessment of professional and personal qualifications for such office. The Bar should urge that the promised review of the Constitution should reconsider the proposals of the Guyana Bar Associa-tion made on this subject at the last constitutional conference,” he said, according to a copy of his speech made available to Stabroek News.
He pointed out that in the United States, the judges of its Supreme Court are nominated by the President but have to endure the rigours of examination by a Congress that the President invariably does not control.
“In Guyana, the reality is that judges are selected by the Executive or persons appointed by the Executive. The separation of powers is by that fact alone compromised. And yet, the separation of powers mandates an independent judiciary – independent from the Executive. I am of the view that this independence can be achieved with the help of the Bar; it is the responsibility of the legal fraternity as a whole, not just the judges,” the Senior Counsel said.
“But our constitution hinders rather than helps in this respect,” he added.
Quoting Chief Justice Bhagwati of India, Fitzpatrick said that the Bar has an important role to play in maintaining the independence of the judiciary. He said that for a true separation of powers, there cannot be an obedient Judiciary.
The Senior Counsel recalled that at the last Constitutional Conference, the GBA proposed among other things that the Judicial Service Commis-sion be strengthened by the inclusion among others of a member from the Law Faculty of the University of Guyana selected by the Faculty of that institution. This measure was implemented by the ANC in South Africa immediately after apartheid was defeated. In Guyana it was not accepted by the government of the day, he said.
Meantime, in relation to the conferring of Senior Counsel status, Fitzpatrick questioned why there has not been a female Senior Counsel. “Over the last decade or two I have known at least three female counsel who would have been appointed in a more equal environment. One left Guyana and two have since accepted judgeships,” he said.
He declared that the system still discriminates professionally against women lawyers, although they are and have always been the backbone of one of its greatest creations over the last generation, the Guyana Legal Aid Centre.
“Women lawyers in and out of the Government have led this development from the beginning. It was a lady advocate in the last Government who as Minister insisted that public resources be devoted to expanding Legal Aid facilities to Berbice and Essequibo. Yet has even one of them been recognized as fit for silk?” he questioned.
“Why can’t dedicated and informed legal service to the deprived rank as high at the bar of justice as service to the state, the corporations and the middle class?” he further asked.
Fitzpatrick also highlighted the exceptional jurists produced by Guyana including Justices De Freitas, Boland, Bunny Luckhoo, Stoby, George and Haynes.
