Adumbrations on the three branches of government

Aug 21, 2016 Letters

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Dear Editor,
Article 106 of the Constitution provides for the composition of the members of cabinet and in addition to the presidents, the vice presidents such other ministers as may be appointed by the president will be members of the Cabinet. In Guyana the person who acts as Attorney-General (AG) and who is necessarily an Attorney-at-law also acts as Minister of Legal Affairs. In practicality it is expected that the Ministers of Government assist the President/the Head of State/the Executive to manage, oversee and operate the business of the government of Guyana for the Ministry of which they are assigned as Ministers (Article 107). However, the Ministry of Legal Affairs is the only Ministry of the Government which the Minister wears two hats as a single Minister, one as AG and the other as Minister of Legal Affairs. Article185 provides for the offices of the Attorney General and Minister. The duties of these offices are perform by one and the same person even though the functions may be vastly different. According to Article 112 the Minster when performing is Attorney-General function he will be doing so as ‘the principal legal adviser to the Government of Guyana.’ There is constitutional provision addressing the functions of the Minister of Legal Affairs but by virtue of Article 100 Parliament/the President is empowered to establish offices of the Minister of Government of Guyana.
An issue to be determined is whether the Conveyancing functions of the Deeds Registry are simply administrative functions or whether the functions performed by the Deeds Registry are judicial or quasi-judicial. A careful examination of the DRA will reveal that the Conveyancing function of the Registrar and Deputy Registrars of the Deeds involve both a judicial and administrative/governmental element. The Deeds Registrar may be statutorily required to liaison where necessary with clearly non-judicial governmental official such as where it is required by Section 7(m) of the Deeds Registry Act (DRA), Cap. 5:01 that the Registrar makes weekly returns to the Lands Commissioner of all transports, mortgages or leases of lands held under title from the State passed under the said Act. The Deeds Registry Act also provides for the Deeds Registrar to pass transport in open court transports, mortgages and leases (Section 16, 17 and Rules of The Deeds Registry in Cap. 5:01).Where the Registrar perform this function she must have only done so as a petty judicial officer and it is necessary that her appointment be in accordance with the some minimal generally recognised practice of appointing petty judges. It is for the mere fact that the Registrar or in the Registrar’s absence the Deputy Registrar or Assistant Registrars of the Deeds Registries are required to perform judicial or quasi-judicial functions that the appointment to such positions must be placed directly under the control of the Judicial Services Commission (JSC).
The Act by virtue of Section 8 of the DRA empowers the Chancellor who is indisputably a judicial officer to make rules and regulations for the order and management of the Registry. The Act where it so provides for the interference of the Minister of Legal Affairs in the activities of the Deeds registry it did so by empowering the Minister to perform his administrative function as Head of the state’s Legal Affairs. The Minister is constitutional debarred from performing or interfering with any judicial/quasi-judicial functions which is vested in the Registries/Registrars. The Act provides for the appointment of the Registrar and Deputy Registrars as notary public by a board of which the AG is a member (Section 3 of the DRA).The only mentioned of the Minister of Legal Affairs is found in Rule 3 of the Deeds Registry Rules. This Rule by providing for the Minister to approve the charge of any branch registry made to a sworn clerk and notary public by the Registrar seemingly mentioned the Minister in an administrative capacity as he is the overseer of the administrative/governmental functions of the governmental organisations entrusted with the state’s Legal Affairs and not judicial affairs. This may also be supported by the fact that the Deeds Registry is not in its entirety administratively autonomous.
The Minister of Legal Affairs in the absence of being a member of JSC and as a single entity cannot be the overseer of the judicial affairs or Judiciary of Guyana. The power to exercise any control where necessary over the judicial affairs or judiciary is vested in the Judicial Service Commission (Articles134, 198 and 199 of the Constitution and Section 13 of the Deeds and Commercial Registries Authority Act No. 4 of 2013). It is for this very reason that the appointment of the Registrars to the Deeds Registry will be suitably performed by the JSC. And this is provided for by Article 199 (3) of the Constitution and Section 13 of the Deeds and Commercial Registries Authority Act No. 4 of 2013). Therefore, it is submitted that the pendulum of constitutional law and political and governmental science does not support the view of the AG that the Deeds Registry and Commercial Registry fall under the Executive Arm of Government. Further, the functions of the Deeds Registry and Commercial Registry are not solely executive functions. Moreover, it is worthwhile to remind the Honourable Minister that neither the Executive nor the Legislature should unreasonably interfere, altered or reduce the power of the JSC whose main function is to assist in maintaining the independence of the judiciary or judicial affairs of the country.
Marsha Archer

Editor’s note: this is the final section of this letter carried in our edition yesterday

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