Dear Editor,
The effectiveness of the administration of justice depends in large measure on public confidence. One of the reasons for falling confidence in Guyana’s judicial system is the erosion of the separation of powers. I recently published two letters and a comment on this issue in response to Attorney General, Mr Anil Nandlall’s assertions on DemeraraWaves. My comments were not restricted to the independence of the judiciary nor did they convey any personal attacks on any judge or on the AG.
Mr Nandlall’s response to my views were carried in the Chronicle of September 5 and the Guyana Times of September 4.
My comments pertained not only to the behaviour of the judiciary but also to the actions of the president and the AG’s office. It also dealt with their effects on the erosion of the borders separating personnel and responsibilities between the three entities in question. More specifically I said that:
1.i. The AG is again using the court to make decisions on the internal working of the legislature.
- Only one judge has been named to the constitutional court which deals with these matters and his decisions are very controversial. Furthermore, in arriving at his most sensitive decision he does not seem to feel that he has to be guided by, or to cite, precedents or the normal points of reference, in support of his views.
iii. The judge in question is prepared to take on issues obviously internal to the legislature.
- Matters pertaining to the internal actions of the Assembly are not matters which the courts can properly prevent the Assembly from exercising the functions set out for it in the constitution.
In his response the AG made no attempt to analyse my assertions with a view to refuting or correcting them. Apart from saying that practically everything I said was wrong he described my comments as: “both an unwarranted and a distasteful verbal assault that is clearly intended to bring Guyana’s judges into disrepute and intimidate them.” He also said that I had a tendency “to proffer comments publicly about matters which he knows little.” He made various other ad hominem comments using such terms as “most contemptuous”; “delusional utterance”; “characteristic arrogance”; and “mentally incarcerated.”
Like Mrs Thatcher, I believe that such ad hominem attacks mean that an opponent has not a single political or technical argument to offer.
Doubtless most readers would be aware of the long simmering controversy over the composition of the courts and of the constitutional court in particular, and its willingness to accept cases of dubious merit. Only last week, the Speaker of the National Assembly gave a statement to the press on this matter. The Speaker has also highlighted the House’s strong disagreement with the CJ’s approach. In a notice of appeal filed on February 25 of this year, the Speaker argued that acting Chief Justice Ian Chang erred in his final ruling on January 29 this year on the 2012 budget cuts case filed by the Legal Affairs Minister and Attorney General to prevent the National Assembly cutting the national estimates presented by the Finance Minister.
Furthermore, senior members of the legal profession such as the current President of the Guyana Bar Association, Mr Burch-Smith have had even more scathing comments to offer on our judicial system as whole,
“The hallmark of a working system must be the timely dispensation of justice…The problem that is pervasive in our system is that delays affect from the Magistrates’ Court to the Court of Appeal. I find that from the point of view of the public, getting justice, if you file a matter, you have to tell your client not to get excited and they may have to wait up to ten years.” (Insight)
Why then would the AG claim that my comments were untrue and offensive?
Mr Nandlall has threatened that:
“Not only must it be condemned in the strongest possible manner but the relevant legal process ought to be activated so that appropriate sanctions can be imposed to protect our judiciary from such and similar scurrilous attacks, if not, our judges will not be able to rule fearlessly and in accordance with law.”
Mr Rohee, Minister of Home Affairs, and others’ complaints about judges’ decisions in the past do not seem to have triggered such reactions from Mr Nandlall or his predecessors.
In Westminster-related systems the international practice as regards criticism of the decisions and actions of the judiciary is clear. An analytical paper on political criticism of Australian courts, which fall within that framework, explained that, “valid criticism of the courts’ legal reasoning ensures that the Judiciary maintains a high standard of impartial decision making. As John Doyle, Chief Justice of the Supreme Court of Australia, pointed out, ‘fair comment on what [courts] do is protected, even if it is both inaccurate and defamatory’” (Gerard Brennan, 1997). The author went on to urge that, if the reasons for judgement are sound, it is irrelevant that the final result is disagreeable to the community. To allow individual judges’ reasons for judgement to be critiqued by legal academics and media commentators, they are put on the public record. This acts as a “powerful protection against any tendency to judicial autocracy and against any erroneous suspicion of judicial wrongdoing.”
For those who like to be guided by the USA a pure presidential system I should like to draw readers’ attention to the guidelines of the American Bar Association’s Commission on Separation of Powers and Judicial Independence. The ABA said that State Bar Associations, instead of responding by reflex to such criticisms, should first determine whether the criticism is damaging to the community and displays a lack of understanding of the legal system or the role of the judge. In the case of inaccuracy, it urged that, “the inaccuracy should be a substantial part of the criticism so that the response does not appear to be nit-picking.”
In the case at issue, Mr Nandlall has chosen not to nit-pick so much as to substitute abuse for correction of the perceived inaccuracy. He has not identified or sought to correct what he thinks are inaccuracies. His concern is my character and political right, not my message.
As a non-lawyer I would venture to insist that the utility of criticism is directly related to the magnitude of impact of the specific decision handed down by the judge, its unpredictability and the extent to which it is clearly explained and justified. In the budget cuts case, as it is now known, the CJ could be found wanting on all these fronts. Indeed, his explanations have left Mr Nandlall and the lawyers in the APNU from whom the latter now directed me to seek advice, with diametrically opposed interpretations in a year-long debate as to what he had actually concluded!
That cannot be a happy situation because faced by such ambiguity the government embarked on an extensive spending spree ostensibly on the basis of an ambiguous ruling notwithstanding the decision of the constitutional body. The actual expenditure cannot be undone in practice, whatever the higher courts may say. There can also be no possible doubt as to the contribution of the lethargic court process to the breathing space given to the government to undertake what they may eventually deem illegal.
Mr Nandlall has brought no evidence or arguments to show that my criticisms of the CJ decision on the budget cuts are wrong or ill-informed. The fact is that innumerable international and regional studies of constitutions with the same arrangements as ours come to conclusions which conflict with that of the CJ on the budget cuts case. It is worth mentioning also that a number of the CJ’s decisions have already been struck down by the CCJ, the replacement for the Privy Council to which the PNC ceased approving appeals as pointed out disparagingly by Mr Nandlall. That CCJ, our court of last resort in the region has not agreed with the CJ’s rulings in a number of cases. This is not unusual but it does mean that neither the CJ nor the AG can silence the public on the basis of demonstrated omniscience on the part of the CJ. I could mention that, in contrast with the CJ, Chief Magistrate Arthur Chung, former President of Guyana, never had a single decision reversed by the higher courts, in the course of a very long career on the bench.
Let me turn to the facts to which I am supposed to have been oblivious or which I made up.
- Mr Nandlall appears to question the fact of the executive’s interference with the work of the judiciary. Both former AG, Mr Doodnauth Singh and Justice Jainarayan Singh accused the executive of being behind the withholding of their benefits in the past. In fact, the judge is reported by the SN of Sept 30, 2009 of being convinced that his reputation of not handing down rulings in favour of government has “had a lot to do with the way he had been treated.” He also said that there had been attempts to influence his decisions. It is for Mr Nandlall to prove that these breaches were the work of maverick PPP members rather than the executive.
- Mr Nandlall challenged my rendering of the events surrounding the appointment of four judges in 2009 and especially the use of the words, “in defiance of the recommendations of the Judicial Service Commission.” He asked whether something was not fundamentally wrong with someone “capable of conjuring up these occurrences and convincing himself that they actually took place.”
My only defence is that I was relying on widely available material, including that available in newspapers and academic publications. I also see little difference between the following words and mine:
“Instead of proceeding as the Commission recommended, the President proceeded to appoint all four persons as justices of Appeal. Members of the legal profession and the Guyana Bar Association contended that the President was bound to accept all of the Recommendations of the Commission. If he had some reasons to do so he should have referred their advice back to the Commission for reconsideration. Thereafter the President would be bound by the advice tendered by the JSC. In their view the four judges were improperly appointed…”
Obviously, there are writers other than I with whom something is fundamentally wrong. Mr Nandlall is painting me with the same brush of “mental incapacity” as Prof Dr Bertrand G Ramcharan, Director of the Guyana Institute of Public Policy, former UN High Commissioner for Human Rights ad interim in 2003-2004 with the rank of UN Under Secretary-General, and Deputy High Commissioner from 1998-2003, and who has impressive credentials in law. Since this government is fond of defining people’s capacity with reference to their political allegiance, inter alia, let me remind readers that Dr Ramcharan has, up to now, been in the highest standing in the eyes of the PPP, having been appointed Chancellor of the University of Guyana, inter alia.
iiiThe world is aware that the JSC has not been properly constituted and when it has functioned it has done so as an entirely ex-officio membership.Three ex-officio members of the JSC appointed Mr Rabi Sukul as a Justice of Appeal although he had been disbarred in the UK. It was small wonder then that on April 25, 2014 the office of the Chairman of the JSC, Chancellor of the Judiciary, Mr Carl Singh issued a statement saying that any further delay in constituting the JSC “will compound the difficulties already faced by an overburdened judicial system.”
Mr Nandlall is apparently unaware of this problem of the JSC. He did not see the SN editorial of Feb 24, 2014, for example, entitled, Justice Sukul and the Judicial Service Commission. He apparently missed Attorney Chris Ram’s note which referred to “… the non-functioning of the Judicial Service Commission, charged by the constitution with responsibility to make recommendations on the appointment of judges and for the appointment, discipline and removal of the majority of senior judicial officers; the inordinate delay by some judges in providing written decisions despite the passage of legislation to remedy this mischief…”
Given the strength of the AG’s language I cannot close this segment without the benefit of observations taken from the second edition of a publication called Insight which draws on observations of some of the most senior practitioners in the system, all of whom have been in the system longer than Mr Nandall.
“The performance of the judges in the Supreme Court is woefully inadequate and criticism in that regard is justified,” Justice Singh said.
Senior Counsel, Bryn Pollard, when interviewed contended that the system itself is “broken.” This is a sentiment reminiscent of Justice Roxanne George’s call in May 2010 on all stakeholders to help “fix the system.”
None of these statements contradicts what I said.
A strong and well-articulated piece by Mr Oudit Rai, former Deputy Judge was published by the SN on March 3, 2014. It directly criticized Mr Nandlall and Magistrate Geeta Chandan inter alia. It began: “I am dismayed and disillusioned over three recent incidents involving the judiciary which have brought the administration of justice in disrepute. The first incident involves the learned Attorney General of Guyana acting as counsel on behalf of the Finance Minister of Guyana who was involved in a motor vehicle accident over the weekend. In doing so, the Attorney General has regrettably placed himself in a very precarious position for a number of reasons. Throughout the world and in the Caribbean, individuals who are appointed to senior public positions are expected to act in both their public and private capacity in a manner which will not undermine the office they hold and which will maintain public confidence in both the office and the office holder…The actions of the sentencing Magistrate also can place the administration of justice in disrepute. The hastiness and nature of the entire process clearly points to the sentencing Magistrate under a misapprehension of bias because the mother of the victim child (sic) is also a sitting Magistrate.”
Yours faithfully,
Carl B Greenidge
