Dear Editor,
I was glad to see that due tributes were paid to the late President Chung, and that acting Chancellor Singh took the opportunity to respond to those who have been making attacks on the Judiciary.
In a democracy such as ours it goes without saying that the Judiciary cannot be allowed to do as it pleases. Lawyers are aware of this, and politicians need to be. It must be remembered however that our constitutional set up is of such that tension has become an unavoidable ingredient in the relationship between the executive branch of government and the judiciary. This is unfortunate, but in my view inevitable. History is replete with examples of conflict between these branches of government. Three examples follow.
In 1957 President Eisenhower of the United States felt obliged to send his 101st airborne division to guarantee peaceful entrance into Central High School of Arkansas. In that case it was the infamous Governor Faubus and his cohorts refusing to carry out the law of the land as laid down by the Supreme Court, for the purpose of allowing children of African descent to attend schools previously segregated. The United States Supreme Court had ordered in favour of the blacks; the order was now being ignored.
Vera Baird QC a junior minister of the United Kingdom in the year 2006 upbraided a judge because she was of the view that he had imposed a sentence which was quite inadequate. She was called upon by the Lord Chancellor to apologize and in doing so said the following, “I should not have made these comments on the case following your statement outlining the clear position of the Government. Accordingly I withdraw them and fully support the Government’s position.”
Mr. Michael de la Bastide, the Chief Justice of Trinidad & Tobago (now President of the Caribbean Court of Justice) at the opening session of the Law year 1999-2000 seemed to castigate some members of the Bar who were inclined not to be sufficiently serious about Judicial independence, and those collateral matters relevant to this feature of their legal system. The Chief Justice in his remarks noted that, “by controlling the judiciary’s access to the funds and by control of the services and staff on which the judiciary depends, i.e. the administration of the judiciary, the Executive can in effect operate a system of reward and punishment that will make the judges think twice before they make decisions which they know will antagonize the Executive. Once a regime is introduced which enables such a system to be operated, judicial independence is severely compromised.”
It might be good start for those not trained in the law to bear in mind the following:
(a) By tradition judges are not expected to respond to attacks on them.
(b) Whatever privileges may be perceived as being given to judges are substantially for the promotion of the principles of justice set out in our most important document, the Constitution.
Yours faithfully,
Odel Adams
Odel, by traditions governments were not so corrupt and crime and poverty were never so high. Sometimes traditions can be good and bad and when they are bad we have to break them and in this instance I am refering to the breaking the tradition of non-attacks especially when it goes aganist proper behaviour
We do practise a civil law and English common law in this country, and the latter arises from a tradition where Act of Settlement 1701 bestowed independence to the judiciary, and by extension, the autonomy of judges.
Of course the idea of separation of powers is not as clear cut as is perceived because the Lord Chancellor in England is both a member of the Judiciary and Cabinet. Here in Guyana, that tradition is upheld, so there is some fusing of the Judiciary and Executive,
From the common law tradition, judges have been elected to interpret and articulate the law, and as such they required to have some degree of independence.
While the common law tradition does not encourage the chastisement of individual judges by both the Executive and Legislature, it certainly allows for their decisions to be questioned, once a motion is moved in Parliament. That and the perception of collusion between the Judiciary and Executive in Guyana is perhaps what inclines people to think that judges ought to respond.
Let it be noted that there have been numerous reforms of the post of the Lord Chancellor in England to ensure an impartial appointment of judges, hence removing that view that he is attached to the Executive.
Finally, we are not simply a democracy: this term is always loosely used in the media. There is a distinction between a liberal and illiberal democracy. One is practised in the US and the other is practised in countries such as ours. For that reason too, the Executive can possibly challenge decisions of the Judiciary, thereby breaking that common law tradition.