Efforts are underway to undermine the judiciary

Apr 05, 2017 Letters

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Dear Editor,
I have had cause to write repeatedly about the systematic undermining of independent constitutional offices by the coalition Government, coupled with the Administration’s constant attempts at encroaching upon the functional responsibilities of these agencies, as well as attempting to stretch the executive arm of government to trespass upon provinces forbidden by the doctrine of separation of powers. In this essay, I will continue along the same vein, but will focus primarily on the current efforts that, in my view are calculated to undermine the independence of the Judiciary.
An independent Judiciary is the sine qua non to a democratic society. Hence, every legal system in the civilized world, either through the medium of written Constitutions or conventions has created a strong institutional framework designed to secure, protect and strengthen judicial independence. Guyana is no different. Ours is expressed in our Constitution. Article 122A states 122A (1), “All courts and all persons presiding over the courts shall exercise their functions independently of the control and direction of any other person or authority; and shall be free and independent from political, executive and any other form of direction and control.
(2) Subject to the provisions of articles 199 and 201, all courts shall be administratively autonomous and shall be funded by a direct charge upon the Consolidated Fund; and such courts shall operate in accordance with the principles of sound financial and administrative management.”
Article 122A is accompanied by a series of constitutional mechanisms designed to make the Judiciary, self-regulatory, functionally automatous and insulated from any influence or pressure from any other person or authority. The Judiciary is financed from a direct charge on Consolidated Fund and therefore its financing does not require parliamentary approval. The appointment, dismissal and disciplining of judicial officers are all the subject of express provisions and procedures set out in the Constitution, which ascribes these functions to be performed by another group of independent constitutional tribunals, with the executive playing, no more, than a ceremonial role.
Over the last 22 months, there has been a multiplicity of actions and or omissions by this Administration, specifically designed to undermine or defeat this formidable constitutional protective network in order to erode the independence of the Judiciary. Prior to 2015, the Judiciary’s budget was presented by the Attorney General to the National Assembly. This budget was prepared exclusively by the Judiciary, in consultation with the Ministry of Finance.
Though the final product was presented by the Attorney General to the National Assembly, the AG would have had no input whatsoever into that budget. That dispensation existed for 50 years without a single complaint ever made by the Judiciary of the Executive’s interference with its budget. This procedure was changed by the new Administration.
The process now is for the Judiciary to submit its budget to the Clerk of the National Assembly and for the first time, the Judiciary’s budget has been cut by the Minister of Finance, on the floor of the National Assembly, every time it was presented, depriving the Judiciary of hundreds of millions of dollars. This constitutes an assault on the financial independence of the Judiciary.
Over the last 22 months, Chancellor (Ag) Carl Singh, Chief Justice (Ag) Ian Chang, Justice of Appeal B. S. Roy and Puisne Judge William Ramlall have all retired. Additionally, the family Court, constructed by the PPP Administration, became functional in 2016. This court has pulled away two Judges from the High Court who are now functioning only in the family Court. President Donald Ramotar increased the statutory compliment of High Court Judges from 12 to 20. Despite this marked exodus, this Administration is yet to appoint a single Judge, thus far, although the President is in receipt of recommendations from the Judicial Service Commission (JSC) since February 2016, to appoint four (4) Judges; two (2) to the High Court and two (2) to the Court of Appeal.
The Court of Appeal, for the first time since 1966, has not sat for well over 6 weeks. For over a year prior, that Court, which is a three (3) Judges Court when it sits, had only two (2) full-time Judges attached to it. Every time that Court sat, it was forced to burrow a Judge from the High Court, putting great pressure on the High Court, which is already short staffed. The President took almost one (1) month to simply swear-in two (2) Judges appointed to act in the offices of Chancellor and Chief Justice, respectively.
Anil Nandlall

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