Courts deciding on MPs’ discipline further erodes separation of powers – Greenidge

Sep 03, 2014 News

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 “It leaves us with a Judiciary keen to intervene at the behest of the Executive and handing out decisions that are damaging and inconsistent with the Constitution and its roots.” – Carl Greenidge

By Kiana Wilburg

Considering the manner in which the courts are being used by the executive to intervene in matters of the National Assembly, the political opposition has deduced that government is clearly out to undermine the functions of the Assembly when its decisions are not politically convenient.

But government’s use of the court in this regard is having a serious domino effect. According to one parliamentarian, while the government may be flexing its muscles in this regard, it is undermining the independence of the courts and is by extension, eroding the separation of powers.
This comment came as a result of the Attorney General (AG) Anil Nandlall’s threat to approach the courts since the Speaker of the National Assembly, Raphael Trotman sent the Finance Minister, Dr. Ashni Singh to the Privileges Committee for spending money the National Assembly did not approve.
Nandlall had responded to the Speaker’s action, stating that it is for the Courts to decide on constitutional matters and not a Committee of Parliament.
But the warning came as no surprise to A Partnership for National Unity (APNU)’s Shadow Minister of Finance, Carl Greenidge. He said that the AG is again inviting the Courts to usurp the role of the Legislature. “In effect the Court is being asked to decide on how to discipline Members of Parliament and it is yet another attempt at further erosion of the separation of powers…”
The politician said that the AG “believes that he is on to a good thing with the Courts and will no doubt try to milk that perceived advantage for all it is worth”.
Nandlall had made reference several times to the separation of powers and the importance of respecting that policy. But what Greenidge finds cynical, is that “ the man who strongly supports this view is the one helping to destroy it.”On this note, he explained that the separation of powers is a key pillar of democratic governance. The personnel and institutions that constitute the three arms of the state are; law makers (National Assembly), Courts (Judiciary) and the Executive (Cabinet, Government Ministers and their Ministries). By keeping their arenas of work or responsibility separate, Greenidge said that it provides checks and balances in relation to the exercise of power.
He insisted that the separation is important in preventing conflict between entities and the possible rise of dictatorship on the part of the Executive. This essentially means for example, that the Courts can provide protection from the Executive and can ensure that the law is equally applied to all citizens, notwithstanding income or social class.
However, the former Finance Minister said that whether this is done in Guyana today is another matter. Highlighting that he strongly believes that this isn’t the case, he noted that it may be due primarily to the breakdown of the courts’ independence from the Executive.
The parliamentarian said that this became patently obvious when one contrasts the treatment of cases such as those of the Minister of Finance and the former Minister of Local Government with the treatment of ordinary members of the public or even with the USA; where a Grand Jury recently indicted Governor Rick Perry of Texas for abuse of power, inter alia.
Greenidge concluded that in Guyana, the principle of separation is routinely breached. He noted that the question of the independence of the Courts is also an issue, as is evident from even a brief reading of the proceedings of the Guyana Bar Association Conference held in November 2000.
The politician said that in spite of the provisions in the Constitution on the role of the Judicial Service Commission, for example, Guyana’s Judges are appointed by the President alone. As a consequence, “an increasing proportion of those who are not only inappropriately experienced but politically connected, have been inflicted on the public,” he added.
He said too that having Judges and Magistrates appointed in such circumstances, exposes citizens to biased decisions, not to mention the risk of incompetence.
Greenidge reminded that at least two senior judges have complained publicly of the abuse of Presidential powers in withholding their benefits. In September 2000, he said that the President appointed four persons as Justices of Appeal in defiance of the recommendations of the Judicial Service Commission. He said that the act was followed by protests from the Guyana Bar Association which saw it as an attempt to punish one judge for handing down a decision on an election petition that did not find favour with the President (B. Ramcharran: Guyana  Court of Appeal).
Greenidge said too that only some weeks ago, it was reported in the media, that a dispute erupted between the Judiciary and the Ministry of Legal Affairs over the recruitment and appointment of staff for the Supreme Court reporting Department.
He asserted that this attempt on the Government’s part is a clear breach of the principle of the separation of powers and a further effort at undermining the independence of the Judiciary.
He reminded too that the legislature passes laws and the Judiciary is tasked with interpreting that legislation. “It is neither the job of the AG nor of Cabinet,” Greenidge insisted.
However, the PPP regime, he said, on the advice of the Attorney General, a Cabinet member who sits in the Assembly, and also participates in the examination and passage of legislation, purports to vet such legislation when it is passed.
“There is, for obvious reasons, no Constitutional provision for the AG’s interference at that point, or any logical reason for the Chief Parliamentary Counsel, to be in his office, let alone under his control. The AG purports to pronounce on the constitutionality of legislation passed by a legislature in which he is an actor. He then advises the President not to assent to properly passed legislation simply because it is politically untimely. He takes two bites of the cherry. In other words, he sits in the legislature and is in bed with the Executive. There is no separation of powers at that point. It is routinely breached by this AG, who is piously citing the need to respect the very principle he is doing so much to destroy,” Greenidge asserted.
As it relates to the AG’s threat to take the referral of Dr. Singh to the Committee of Privileges, to the Courts, Greenidge asserted that the court is now being invited to usurp the National Assembly’s functions.
Speaker of the National Assembly, Raphael Trotman had stated that prior to the Tenth Parliament there was only one legal challenge to the National Assembly. It was in 1965. The then Chief Justice, Harold Bollers, was very strong in condemning what he considered to be the interference of the courts in parliamentary business.
But based on the current actions of the court, it would appear that the courts see things differently now.
Trotman had firmly stated that he believes that the House has a right and a duty to look into any matter where it feels that a member has brought it into disrepute or has disrespected its decisions or otherwise.
He had said too, that “the courts now are seeing things in a different way and it feels that it has the right to get involved and from time to time interfere. It is not something I am happy about… I think it is being used to take a side in an argument and that is my dilemma.”
Greenidge stated that taking everything into consideration, “it leaves us with a Judiciary keen to intervene at the behest of the Executive and handing out decisions that are damaging and inconsistent with the Constitution and its roots. The decision is damaging because it further erodes the separation of powers.”

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