Resist political pressure

- acting Chancellor urges magistrates and judges

Emphasising that the judiciary is independent from the executive, acting Chancellor of the Judiciary Justice Carl Singh yesterday urged judges and magistrates to “firmly but politely resist” political pressure and not allow themselves to fall prey.

Justice Singh was at the time addressing the opening ceremony of the four-day Commonwealth Magistrates and Judges Association (CMJA) Conference, at the Marriott Hotel.

Guyana’s constitution, Justice Singh said, provides that all courts and all persons presiding over the courts shall exercise their functions independently of the control and direction of any other person or authority and shall be free and independent from political, executive and any other form of direction and control. He explained that the independence of the judiciary is “buttressed” by the provisions of the constitution but equally important is the readiness of judges to assert and protect that independence.

Those in attendance at the opening of the Commonwealth Magistrates and Judges Association (CMJA) Conference yesterday. (Photo by Keno George)
Those in attendance at the opening of the Commonwealth Magistrates and Judges Association (CMJA) Conference yesterday. (Photo by Keno George)

He said that judicial independence may also be discerned from the structure, circumstances and conditions under which judicial officers function. In Guyana, he noted the government went a step further, with a publicly declared commitment to ensuring the complete independence of the judiciary and the non-interference in judicial affairs by legislative enactments which gave the local judiciary complete control over its financial affairs. “So it is not without significance that in Guyana, we can proudly lay claim to having complete independence in the adjudicatory processes of our courts and to institutional and financial independence,” he said to applause.

According to Chancellor Singh, judiciaries around the world are faced with tensions between them and the executive branches of government. He said that the reasons for this tension are many and vary.

He made mention of a previous issue with an Attorney General who had said that “I was holding out the judiciary as a state within a state.” Not naming the person, he said that this comment took him by surprise. Justice Singh also mentioned another incident a few years ago when a now retired Chief Justice publicly chided a minister of government for inappropriate remarks made and reminded him that a healthy tension between the executive and judiciary was good for democracy.

“It is, however, in the area of judicial review where a significant cause for judicial tension lies. The ultra vires doctrine is the executive’s nightmare. Many governments have seen what they perceive to be political planks based on elections promise or intended policy knocked out by judicial decision,” he said.

Justice Singh stressed that members of the executive are especially concerned with checks on administrative decisions that have political consequences. He reminded all that judges are guided by the law and the constitution and decisions are not based on “whim and fancy” but on the law and the constitution.

According to Justice Singh, any attempts by the executive on the affairs of the judiciary must be “firmly but politely resisted.”

Turning his attention to the courts, he said that while many see them as places of punishment and scarcely see them as places where rights are asserted and established.

He said people are scared of the robes and wigs and see the process as torturous and costly. “The time is probably right for us to adopt a broad role in society, so as to enable the public to understand the importance of our work. We must be able to convey to the wider society that access to justice does not necessarily mean access to the court and that while the court may satisfactorily resolve many disputes, there is a great number of disputes that can be equally resolved by other methods,” he said, while adding that in his view the adoption of other methods would help people to better understand the role of the judiciary as the guarantors of the rule of law and of their human rights.

He added that to be able to provide that guarantee for the rule of law, the judiciary must possess certain characteristics and attributes. “I speak mainly about judicial independence. I speak of activist judges who are bold, outspoken and fearless. Judges who are weak, timorous souls are less likely to be effective guarantors of the rule of law,” he added.

Abiding by rule of law

Prime Minister Moses Nagamootoo, delivering the feature address, said government is conscious of the distinction that must be made between “rule by law,” whereby government erroneously places itself above the law, and the “rule of law.” which implies that everyone in society, including the government, is bound by the law.

“It is on the latter that we have rested the structure of government, recognising that constitutional limits on the exercise of governmental authority, which is a key feature of any democracy, require adherence to the rule of law. Indeed, the quality of governance is defined by observance of the rule of law. Good governance depends on it,” he stressed.

Agreeing that the topics outlined on the conference’s agenda are relevant and important, he said that since assuming office in May, 2015 the APNU+AFC government has made a conscious and determined effort at giving recognition and meaning to the declaration adopted in 2012 by the United Nations General Assembly High Level meeting on the Rule of Law.

That declaration affirms that “Human rights, the rule of law and democracy are interlinked and mutually reinforcing and that they belong to the universal and indivisible core values and principles of the United Nations.”

In recent times, he said Guyana’s constitutional reformers and law-makers have adopted liberal concepts in the approach to governance. “First, we recognise that there should be clear limits to the power of the executive or government.  We recognise that government exercises its authority through publicly disclosed laws that are adopted and enforced by an independent judiciary with established and accepted procedures. We are committed to the principle of equality before the law and that the law must apply equally to the government and the governed,” he said.

With regard to the protection of the rights of citizen, Nagamootoo said the government has repeatedly declared that it is “unshaken in the belief that in our state structure, the judiciary should …be independent.

Our recognition is that an independent judiciary is the strongest guarantee for the protection of the rights of our citizens.  We believe that an independent judiciary is the bedrock of the stability of our nation.  We believe that only an independent judiciary could be the guarantors of the rule of law.”

He said that within this focus and within this framework, government has legislatively created the structure to give effect to true and meaningful judicial independence.

“Of course, I would not let the opportunity go by without saying that our judges, in their adjudicatory role, are not in any way subject to any form of improper, inappropriate or unwarranted governmental influence.  That is a matter of which we in this present administration are exceptionally proud, and I make this claim without fear of contradiction.  While we respect the separation of powers, we promote comity among the Executive, the Legislature and the Judiciary,” he said.

He said that not only does the judiciary enjoy independence when it decides issues between citizen and citizen or between citizen and the state but it also has independence over its administrative machinery, its registries and personnel. “In sum…the judiciary of Guyana enjoys adjudicatory, institutional and financial independence may be a first for the Commonwealth Caribbean, a recent achievement since our assumption of office,” he stressed.

Court of excellence

Meanwhile, the CMJA’s President Justice John Lowndes, in his remarks, said that while the rule of law is a concept that is often difficult to “pin down,” it basically speaks to ensuring “equality before the law.”

He said that the rule of law required the “equal subjection of all classes to the ordinary law of the land administered by ordinary law court.”

Justice Lowndes said that the rule of law does not discriminate between the governor and the governance but insists that both stand equally before the law. This, he said, applies to all manner of disputes that courts are charged with resolving. The courts, he said, are tasked with resolving disputes between the state and citizens as well as between individual citizens.

He said that the judiciary is the cornerstone of any responsible government in a “free, democratic society.”

Justice Lowndes said that as a guarantor of the rule of law, the judiciary across the entire Commonwealth has a vital role to play, thereby protecting the judiciary and maintaining the rule of law, which is a fundamental value of the Commonwealth.

Further, he said that the role of the judiciary in preserving the rule of law is expanded upon in the international framework of the court of excellence. He explained that this is a resource available to all courts around the world through which they can assess the quality of the justice they deliver. He said that according to this framework, an excellent court adheres and applies ten internationally recognised core values: “equality before the law, fairness, impartiality, independence of decision making, competence, integrity, transparency, accessibility, timeliness and certainty.”

He said that these are the values that the court must embrace in order to fulfil its critical role and functions in modern society. “These core values individually and collectively guarantee due process and equal protection of the law to every citizen, to everyone,” he said, while adding that by adopting and applying these core values, the judiciary can guarantee the rule of law.

Among the topics to be addressed during the conference are domestic violence, capital punishment, environmental law, cyber-crime and gangs and organised crime.

The conference, which is being held under the theme “The judiciary as guarantors of the rule of law,” ends on Thursday.

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