Treading a dangerous course

Aug 21, 2016 Features / Columnists, Peeping Tom

“Those who forget the past are condemned to repeat it.”
Guyana’s descent in authoritarianism in 1976 began with the flying of the flag of the ruling PNC over the Appeal Court.
Today, it is not a flag that is being flown. A rag is being waved. But the implications for the rule of law and for democracy are no less ominous.
The decision to fly the PNC flag over the high court, led to the politicization not just of the judiciary but also of jurisprudence. A judgment made by Victor Crane, subsequently, effectively incorporated the paramountcy of the party as a legal concept. Fortunately, no other judge, local or overseas, has ever used that ruling as a precedent.
To Desmond Hoyte’s credit he rolled back the politicization of the judiciary. Hoyte is given credit for a lot of things for which he does not deserve credit. But Hoyte’s greatest achievement was not the ERP. It was not also free and fair elections. Hoyte greatest achievement was rolling back the politicization of the judiciary.
His decision to follow the Constitution in relation to a complaint which was filed against a judge did just that. The judge was disrobed.
Hoyte had no part to play in that process but by not interfering, it allowed for confidence to be restored to the judiciary which for years could not erase the stigma that it attracted by allowing the flag of the ruling party to be flown over the Court of Appeal
The APNU+AFC government is now treading a dangerous course; one that can spell disaster for constitutionalism, the independence of constitutional commissions and the rule of law. The actions of the government and the pitiful defences that it is offering can discommode the relationship between the government and the judiciary.
The appointment of certain public officers within the judicial system is the responsibility of the Judicial Service Commission. The reason why this is so – not just in Guyana but throughout the Commonwealth – is in order to protect the independence of the judiciary.
The independence of the judiciary in the Westminster system is the feature that best approximates to the separation of powers, a political and legal concept which has been judged to be necessary to prevent absolute rule.
The Judicial Service Commission is the agency which appoints certain public officers within the legal system so as to insulate such appointments from political influence. The government, this past week, has been accused of interfering with the independence of the judiciary by its actions and pronouncements on the issue of the appointment and functioning of a Deputy Registrar of the courts.
The government is suggesting that the person is not qualified for the position. This may or may not be true. This is the excuse that the government is making to reject the appointment of the person concerned. The excuse should be dignified. It is an insult to the learned men and women of the Judicial Service Commission for such a statement to be made. But the issue is nonetheless irrelevant.
The government is lawfully bound to accept an appointment by the Judicial Service Commission. It has no role in determining who should be appointed, because the very purpose of the laws reposing such powers in the Judicial Service Commission is to prevent politically favoured appointments. The government has no say and has no locus standi in questioning an appointment made by an independent constitutional authority.
The government, if it finds the appointee unable to carry out the functions of the office, may take action, under the law, to have that person dismissed. But it cannot, administratively or otherwise, frustrate an appointment of the Judicial Service Commission.
The government is walking a dangerous course.
The rule of law is under threat in Guyana. The independence of the judiciary is under siege. The risk of authoritarianism is high.
The local Bar, the Caribbean Bar, the local human rights associations and the ABC countries should condemn what is taking place. The issue goes beyond who is appointed as Deputy Registrar. It is about the independence of the judiciary. If that goes, Guyana is doomed, again.

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