The written decision of Chief Justice (ag) Roxane George-Wiltshire on the interpretation of Article 161 (2) of the Constitution of the Cooperative Republic of Guyana was recently handed down. I commend Stabroek News for making it available electronically so that interested parties can have access.
The decision contains several important points. One such is that matters of sufficient public importance may confer upon any Guyanese locus standi (that is, sufficient connection to or harm which confers standing to bring an action with respect to a matter) to invoke the court’s jurisdiction.
I fear that in hastening to ascertain what the court has decided regarding the proper interpretation of Article 161 (2), many may have overlooked the significance of the court’s decision on the above-stated point. At the very least, no media outlet that I consulted paid attention to this detail. At least not yet. These contemplations prompted this letter.
Any person, natural or juridical, desirous of commencing litigation on any civil, constitutional, or other such matter, must demonstrate locus standi. Where a court finds that an applicant lacks locus standi, the application will typically be dismissed without any examination of the substantive issue(s).
It is unsurprising, therefore, that the State’s counsel challenged the applicant’s locus standi, arguing that he was not a public benefactor, but a “meddlesome busybody” who had failed to establish “…sufficient direct interest in the appointment of the Chairman of Gecom.”
The court, however, found that “as a citizen, and elector, the applicant…definitely has relevant and sufficient interest in knowing how the position of such an important office is to be filled, and to have the court interpret the relevant article of the Constitution in the circumstances where it may be that there is ambiguity or uncertainty”, and that “the appointment of the Chairman of the GECOM is one of national interest and importance…”
The Chief Justice noted that case law consulted revealed that “…courts have been working assiduously, if not uniformly, to open the gates to general grievances public interest litigation, where an applicant is not directly affected by the impugned legislation or public/government action,” and that “judicial discretion will have to be exercised in each case depending inter alia on their legal and factual context, the merits of the challenge, the importance of the issue, and the public interest in having it determined.”
Applying the authority consulted to the facts of the current case, the Chief Justice determined that “once issues raised are sufficiently grave, or of sufficiently public importance and involve high constitutional principles, an applicant’s case may be considered,” and ultimately found that “as a citizen and an elector, the applicant has a relevant interest in the appointment of a Chairman of GECOM and as such has locus standi to make this application.”
This finding is in line with the concept of public interest standing developed by the Supreme Court of Canada in the so-called “standing trilogy”: Thorson v Attorney General of Canada (1975) 1 SCR 138; Nova Scotia Board of Censors v McNeil (1976) 2 SCR 265; and Minister of Justice v Borowski (1981) 2 SCR 575); and which was affirmed, and applied in Canadian Council of Churches v Canada (Minister of Employment and Immigration) (1992) 1 SCR 236.
Further, Lord Diplock, recognising the potential harm that may come about from denying standing to persons not directly affected by impugned legislation or government action, said, “it would be a grave lacuna in our system of public law if a pressure group…or even a single public spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped.” (Inland Revenue Commissioners Appellants v National Federation of Self-Employed and Small Businesses Ltd Respondents (1982) AC 617).
Notwithstanding these positions, it is understandable that the court would be mindful against opening the proverbial floodgates and encouraging a torrent of public interest litigation. The Chief Justice did not fail to address this in her judgment, affirming precedent recognisng the need to balance the “desirability of encouraging individual citizens to participate actively in the enforcement of law (against) the undesirability of encouraging the professional litigant and the meddlesome interloper invoking the jurisdiction of the courts in matters in which he is not concerned.”
Further, as indicated earlier, the Chief Justice was sure to make it clear whether public interest matters confer locus standi will depend on the legal and factual circumstances of each case.
In my humble estimation, the court’s determination on this issue is important beyond measure. The dual context against which the preceding statement must be viewed, and ultimately understood, is what seems to be the perpetual intentional and/or unintentional violation of Guyana’s Constitution by public authorities under successive political administrations, and the resulting need for enhanced conformity with, and reverence for the Constitution.
While we wait for personal conviction or civic education to compel the culture of compliance which is desirous, it does seem that compulsion through judicial determinations may achieve swifter results, although I will concede that even that suggestion is debatable.
Nevertheless, I hope that all persons who possess both a genuine interest in seeing the provisions of the Constitution followed, and the intent and means to compel such compliance through litigation or some other means, take note of this aspect of the decision and the authorities upon which it stands.