The Caricom State with the most appeal cases to date litigated before the Caribbean Court of Justice (CCJ), Guyana’s contribution to the region’s jurisprudence has been significant in the area of elections disputes and accounts also for the largest number of land cases before the court.
This was revealed by CCJ Judge, Denys Barrow, who, in his analysis of the court’s dealing with the election-related cases said, “…that jurisprudence made every difference in choosing the way of peace and not violence.”
He would then add, “Those enormous challenges to some fundamental tenets of Guyanese constitutional and election laws, it will be appreciated, rocked the legal and political firmament even before the elections [of March 2nd, 2020] were held and the turmoil resumed even before the results were returned” five months later on August 2nd.
Justice Barrow was at the time speaking during a virtual law conference last Wednesday as part of activities that marked the recently concluded inaugural law-week observances hosted by the Guyana Bar Association (GBA), under the theme “Advancing the Rule of Law in the New Normal.
Following its inception in 2005, the Court the following year rendered its first decision in a case from Guyana-Griffith v Guyana Revenue Authority and another [2006] CCJ 2 (AJ).
To date, it has decided a total of 111 cases from Guyana; compared to 88 from Barbados, 42 from Belize and eight from Dominica.
Providing an overview of the areas of law litigated in Guyanese cases for the period 2016 to date, Justice Barrow told the conference that most of those judgments dealt with Land Law, Criminal Law, Constitutional Law, Practice & Procedure, Judicial Review and Company and Commercial Law.
There has also been litigation in the court’s original jurisdiction.
Justice Barrow in his speech told the virtual audience it has been remarked that Guyana—the jurisdiction which has by thousands of times, the largest land mass and lowest population density—generates the most land law cases.
That factor he said, makes it curious that a discernible feature is the concern with title to land which, though commonplace, attracts attention because of the need they demonstrated for the court, in particular circumstances, to clarify the operation of established principles contained in legislation regarding the indefeasibility of registered title.
Clarifying
Justice Barrow outlined that cases regarding the fraudulent acquisition of land and particularly cases on prescription of title have led to jurisprudential benefits, which has led in the latter cases, to the court clarifying rather than extending the law.
The jurisprudence he said, has also been advanced by the Court’s consideration of the intersection of Roman Dutch and English land law; noting that a resulting or constructive trust under the English system, which recognizes both a legal owner as well as a beneficial owner, would be problematic with respect to the law of immovable property in Guyana.
Regarding the criminal law, Justice Barrow said that the court’s jurisprudence has also benefited significantly where sentencing is concerned.
On this point he said the Court applied the rudimentary rule that where multiple offences arise from the same set of facts or the same incident, it will be appropriate for the sentences on those charges to run concurrently. It indicated that consecutive sentences may be given where the offences arise out of unrelated facts or incidents or where the offences are of the same or similar kind but where the overall criminality will not sufficiently be reflected by concurrent sentences.
The need for the Court’s guidance in this area he said, has been shown to continue; while adding that the Court has also made major rulings on the new approaches and practices which must be adopted by sentencing courts in Guyana and other jurisdictions.
Within what he called the “rich material” contained in such judgments, Justice Barrow said is the nugget that the jurisprudence has evolved, beyond the disposition expressed by the Guyana Court of Appeal that; “in Guyana we give stiff sentences for rape,” to a recognition that retribution is not always the dominant sentencing objective, but which must include factors such as the public interest in not only punishing, but also in preventing crime; deterrence, the preventative, aimed at the particular offender; and the rehabilitative; aimed at rehabilitation of the particular offender with a view to reintegration as a law-abiding member of society.
Justice Barrow said it is appreciated that popular opinion could hardly be strongly in favour of a reduction of a rape sentence almost by half, but said it is to be hoped that the wider society will credit the Court with “acting on a principled basis and not an arbitrary one” thus illustrating how jurisprudence develops to reach a modern conception of what now amounts to a sentence that is manifestly excessive.
“Of course, it is not every case that will be regarded on review as notably contributing to the jurisprudence but at a granular level they all do,” the Judge asserted.
Also attracting particular attention for the development in the jurisprudence in constitutional law cases from Guyana Justice Barrow said are those cases dealing with the savings law clause, which he said has bedeviled the full enjoyment of some fundamental rights declared in the constitution itself because pre-independence laws are saved from being declared invalid for being in conflict with the new.
Cross-dressing
The case standing out here for reference was that brought by a group of Guyanese trans-genders, in whose favour the CCJ declared invalid a colonial era law that criminalized cross-dressing because it infringed the constitutional right to equality before the law, non-discrimination, and freedom of expression.
The CCJ held that the savings law clause was incapable of preserving the law from a declaration of unconstitutionality.
The court rendered a similar judgment in the case of Marcus Bisram v DPP [2022] CCJ 7 AJ where it modified Section 72 of the Criminal Law (Procedure) Act which gave power to the Director of Public Prosecutions to direct a magistrate, who had discharged an accused at a preliminary inquiry, to reverse that decision and instead commit the accused to stand trial.
Pending legislative intervention, the Court gave the power to reverse the magistrate’s decision, to a judge.
Regarding its treatment with election-related disputes, Justice Barrow first cited what has become popularly known here in Guyana as the “Third-term case,” where the litigant sought to challenge the law prohibiting a president who had already served two terms, running for a third time.
The litigant—Cedric Richardson—had argued that the particular amendment so requiring, diluted his right as an elector to choose who should be President.
The litigation had specifically named former two-term president Bharrat Jagdeo who Richardson had expressed as his choice.
Following that case, Justice Barrow said that “the legal (and political) ferment reached full fury” in the case of Ram v AG and others in which the CCJ was then called upon to determine in the main, whether a no-confidence motion in the National Assembly was validly passed by 33 out of 65 members.
In a subsequent decision the Court decided there was no need to put any gloss on the interpretation of the clear words of the Constitution which stated that, following the passage of a no-confidence motion, elections were to be called within three months or such longer period as the national assembly may stipulate.
The Trinidad-based court of last resort for Guyana declined to set a date for fresh elections, saying this was the remit of various constitutional actors and it was proper for the Court to trust the integrity of the constitutional order for the process to be carried out.
“The comment may be made that it is by such judicial restraint that the legal profession and the body politic are reassured that the Court may be trusted to avoid judicial overreach and political interference,” the CCJ justice said.
Those, what he called “enormous challenges” to some fundamental tenets of Guyanese constitutional and election laws, “rocked the legal and political firmament even before the elections were held and the turmoil resumed even before the results were returned.”
Justice Barrow reminded that the line of litigation which then followed, concerned the challenge to the validity of the recount of votes and produced a judgment by the CCJ that drew a line between the proper operation of Article 177(4) of the Constitution, which excluded jurisdiction in the Court to examine the validity of election returns, and a question whether a lower court had correctly interpreted a different legal provision and applied that interpretation to the constitutional provision.
The Court held there had been no true challenge under that article in purportedly challenging the validity of the votes counted. Therefore, the decision of the Court of Appeal had not been a final decision and the CCJ had a duty to pronounce on that court’s jurisdiction and proper interpretation of the Constitution.
Describing that matter as the “tail end” of related litigation, Justice Barrow referenced the earlier decision in Mustapha v AG and another in which the Court held that the appointment by then-President David Granger of the Chairman of the Guyana Elections Commission otherwise than from a list of nominees, of persons ‘not unacceptable’ to the President, submitted by then Leader of the Opposition, Jagdeo was flawed.
Justice Barrow said that great tribute is due to the Bar Association, and equally to the Guyanese people, for participating in the creation of a court and jurisprudence in which “the profession and society could place the confidence to fairly and convincingly” adjudicate upon these enormously important matters.”
“That jurisprudence made every difference in choosing the way of peace and not violence,” the CCJ Justice said.
