The use of the word ‘presumptuous’ was intemperate

May 04, 2024 Features / Columnists, Peeping Tom

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Kaieteur News – I have not read the decision of Justice Sandil Kissoon in the case brought by the Guyana Teachers’ Union against the government. But from what I have read in the newspapers, it is my opinion that aspects of this ruling are going to be overturned by a higher court.

It is not that I think that the decision, based on what I have read, is fatally flawed. It is rather that I believe that it is a decision that is before its time, in the same way as Justice Ian’s Chang’s decision in the ‘third-term’ case was too advanced and progressive.

Readers will recall that the Caribbean Court of Justice (CCJ) overturned Justice Chang’s and the Guyana Court of Appeal’s decision in the Cedric Richardson case. But it was not a unanimous decision by the CCJ.   Guyana’s highest court by a majority of 6-1 upheld the constitutional bar to President’s having a third term.

In his ruling in the local courts Justice Chang had argued that the Article 90 (2) and (3), had effectively rendered ineligible to stand as President perhaps hundreds of persons who had acquired citizenship of Guyana by registration and perhaps thousands of non-resident citizens of Guyana by birth or descent.

In his legal reasoning, Justice Chang posited that the Parliament of Guyana did not have untrammeled power to reconstitute the political foundation of the nation and that any attempt to dilute pre-existing democratic rights of the electorate would be invalid and without legal effect unless done via referendum.

In his dissenting judgment, at the CCJ, Justice Anderson said, “A core feature of a sovereign democratic state in which sovereignty belongs to the people is that the people must be free to choose the persons who will govern and represent them, especially as their President. Free, that is, of any constraints that they themselves have not approved at the founding of their Constitution or by the processes specified for their involvement in defining such constraints. There is an irrebuttable presumption that the people know who would best represent their interests in government. They are the ones to decide upon the suitability and categories of qualifications of persons to stand for office. The imposition of restrictions that disqualify large numbers of persons from standing for election as President, which restrictions are not sanctioned by the people in the constitutionally authorized manner, necessarily trenches on their freedom to choose their representatives and is concomitantly a fetter upon their sovereignty.”

He went on to state, “It is to be emphasized that it is not for the executive, the legislature or the judiciary to decide the universe of candidates from which the people can choose their President. That would usurp sovereignty from the people and relocate it to subservient organs of the state. Any temptation presented to these organs of state to refashion the democratic sovereignty of the people in a way that whittles away that sovereignty, ought to be resisted.”

Like Justice Chang, he concluded that, “I am persuaded that the recognition in Articles 1 and 9 that sovereignty belongs to the people who exercise it through their representatives necessarily entails the corollary that the people are free to choose who their representatives will be, free that is, from any constraints not imposed by the people themselves.”

Chang’s arguments in relation to the structure of the constitution were progressive. They were upheld by majority by the Court of Appeal but dismissed by majority in the CCJ.

Despite this, it shows that there is a growing maturity in the jurisprudence within the Caribbean. Our jurists are demonstrating the ability to make far-reaching and groundbreaking decisions.

Justice Sandil Kissoon’s decision in the GTU case may be in that category in relation to the right of collective bargaining and the need for the Ministry of Education to act in good faith in its dealings with the Union. However, it is difficult for me to wrap my head around the aspect of the decision dealing with non-deduction of pay for workers on strike. I anticipate that this aspect will not be upheld in higher courts.

Despite this opinion, I would not dare to describe the judge’s decision as ‘presumptuous’. This is intemperate language since whatever flaws others may feel exist in the decision, it can hardly be said that the judge has overstepped his boundaries or jurisdiction.

The government has said that the decision has turned industrial relations upside. This, however, may only be so in relation to one aspect of the ruling. But there are other aspects of the ruling that are in my humble estimation, solid, including the issue of the legality of the strike.

(The views expressed in this article are those of the author and do not necessarily reflect the opinions of this newspaper.)

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• Caribbean Court of Justice (CCJ), Guyana, intemperate, Justice Sandil Kissoon, progressive

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