Whither goest the Rule of Law in Guyana, South America, from the Declaration of Delhi?
Whither goest Thou, Rule of Law, in Guyana, South America, from the Declaration of Delhi?
(published on LinkedIn on 3 July 2018)
“(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.”
“(1) The Chancellor and the Chief Justice shall each be appointed by the President, acting after obtaining the agreement of the Leader of the Opposition.”
“The principle of irremovability of the Judiciary, and their security of tenure until death or until a retiring age fixed by statute is reached, is an important safeguard of the Rule of Law. Although it is not impossible for a judge appointed for a fixed term to assert his independence, particularly if he is seeking re-appointment, he is subject to greater difficulties and pressure than a judge who enjoys security of tenure for his working life.” (Declaration of Delhi, p. 12)
Most recently, it has been reported that the President’s nominees for the substantive offices of Chancellor of the Judiciary and Chief Justice have not been agreed by the Leader of the Opposition.
The 13-year impasse continues.
“This has brought us to the situation today where the number one and number two officials of the Guyana judiciary have not been substantively appointed. This is a most unfortunate state of affairs… This situation has moved well beyond what ought to be acceptable in a modern democracy where respect for the rule of law is maintained. The Constitution envisages the judiciary of Guyana to be headed by officials who are substantively appointed and enjoy all the legal and institutional mechanisms to secure their tenure …
The delay in complying with section 127(1) of the Constitution has long (breached) a level of justifiability and the most appropriate authority for resolving this situation is the court system.
Section 127(1) ascribes an obligation to the President and the Leader of the Opposition that is mandatory in nature and not discretionary (to appoint the Chancellor and Chief Justice).
Any failure in fulfilling this obligation must, therefore, be regarded as a breach of the Constitution.” (Sir Dennis Byron, Guyana Times, November 15, 2017)
“The ability of the judiciary to resolve matters must be a critical dimension of the rule of law. In this regard, I have to say a significant stain on the rule of law so far is Guyana’s inability over the last 13 years to appoint a substantive office holder to the position of Chancellor…There really can be no excuse for that kind of situation …
… the rule of law has become an independent constitutional value which is at a very high level. It is almost in the same stratosphere as the separation of powers and we know that courts have not been shy to give relief to litigants on the basis that separation of powers has been breached …” (Mr Justice Adrian Saunders, Stabroek News, May 26, 2018).
Constitutional reform in Guyana has been long overdue and is now urgent and imperative. A revised process of selection of Chancellor of the Judiciary and Chief Justice is recommended here. This new process of selection should be independent and transparent. The Constitution of The Cooperative Republic of Guyana should be amended to provide for selection of candidates by an Independent Selection Commission.