‘The battle for lands’

Apr 18, 2022 News

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– Guyana accounts for highest number of land dispute cases before CCJ

Kaieteur News – In addition to having the most cases filed before the Caribbean Court of Justice (CCJ), Guyana also accounts for the highest number of land dispute matters the court has ever handled since it commenced operations in 2005.

This is according to CCJ Judge Denys Barrow, who delivered presentation at a virtual law conference organised by the Bar Association of Guyana as part of activities in observance of its recently concluded Inaugural Law Week.
Justice Barrow noted that it has been remarked that Guyana, which has by thousands of times the largest landmass and lowest population density, generates the most land law cases. This factor, he noted, makes it curious that a discernible feature is a concern with title to land; many of these of which are commonplace.
Justice Barrow’s presentation was based on Guyana’s contributions to the jurisprudence of the CCJ as its appellate court for criminal and civil matters. According to Justice Barrow, the CCJ Has pronounced on 249 cases, of which the majority – 111 were from Guyana. The other 88 are from Barbados, another 42 from Belize, and the remaining eight from Dominica.
Giving details of the types of cases filed before the CCJ, the judge noted that criminal law cases from Guyana have contributed significantly to the Court’s jurisprudence on sentencing.
He cited the case of Bridgelall versus Hariprashad the appellant was convicted of two drug possession charges for cocaine found in a house and also in the yard of the house. In relation to the consecutive five-year terms imposed, the CCJ held that the sentences should have been concurrent. In that case, the CCJ 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…” Barrow said.
In the criminal appeal of Pompey versus the Director Public Prosecutions (DPP), a major decision on the new approaches and practices that must be adopted by sentencing courts in Guyana and other jurisdictions was made.
The appeal was against consecutive sentences amounting to 37 years imprisonment for three sexual offences including rape.
The CCJ reduced the punishment to concurrent terms of imprisonment amounting to 17 years; notably a useful part of the decision in this case was the pronouncement that the violation of the appellant’s constitutional rights by the excessive delay in the case was to be compensated for by staying the portion of his sentence unserved while he was on bail after Full Court reversal. As it relates to the constitutional law cases from Guyana, the judge said these have attracted particular attention for the development in the jurisprudence on the “savings law clause”, which has bedevilled the full enjoyment of some fundamental rights declared in the Constitution.
Justice Barrow explained that the clause, included in the attainment of independence in various constitutions across the region, served to preserve existing, pre-independence laws and saved them from being declared invalid for being in conflict with the new constitutions.
He highlighted that the clause has been allowed to operate for decades after the attainment of independence to preserve laws that are universally acknowledged to violate basic human rights. Instead of being struck down, the CCJ Judge said that such unconstitutional laws have been protected or saved by the savings law clause.
“It is important to recall that the clause was intended, at inception, to allow us space, for local legislatures to reform existing laws that will be revealed to be unconstitutional with the advent of the new Constitution,” Barrow said noting “However, because there has not been the legislative reform, which was contemplated in the conception, the clause has been allowed to operate for decades after the attainment of independence to preserve laws.”
Justice Barrow also referenced the case of McEwan and others against the Attorney General of Guyana, where the CCJ declared invalid a colonial-era law that criminalised cross-dressing because it infringed the constitutional right to equality before the law, non-discrimination, and freedom of expression. He noted that the CCJ as the apex court held that the savings law clause was incapable of preserving the law from a declaration of unconstitutionality and being struck down.

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