Jul 17, 2018

Whither goest the Rule of Law in Guyana?





























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?


Further to the observations made in the author’s earlier article ‘How Independent is the Judiciary of Guyana, South America?’

 (published on LinkedIn on 3 July 2018)

 the procedural aspects of the principles of the Rule of Law, Separation of Powers and Independence of the Judiciary set out in the Declaration of Delhi, will be considered in relation to the appointment of the Chancellor of the Judiciary and the Chief Justice of the Cooperative Republic of Guyana.

The Rule of Law

The Declaration of Delhi (1959) issued by the International Commission of Jurists, identified that a constitution observing the Rule of Law would show certain characteristics, including that of an independent Judiciary. Joseph Raz (1977) also argued that an independent Judiciary should be guaranteed.
 Can ‘Acting’ justices in Guyana comprise a fully ‘independent Judiciary’?
 The Constitution of the Cooperative Republic of Guyana, which is the supreme law of the state, provides for independence of the Judiciary. Article 122A(1) provides as follows:-
“(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.” 
This stated independence can, however, be affected to some extent, by the selection procedure for the two most senior members of the Judiciary, the Chancellor of the Judiciary and the Chief Justice. The selection of these justices depends on agreement between the President and the Leader of the Opposition.
The Chancellor and Chief Justice are appointed by the President (Art. 127(1)
The Chancellor and the Chief Justice, are appointed by the President, acting after obtaining the agreement of the Leader of the Opposition. Article 127 of the Guyana Constitution provides as follows:-
“(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 Declaration of Delhi refers to the principle of irremovability of the Judiciary, and their security of tenure as an important safeguard of the Rule of Law.
“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) 
The principle of irremovability of the Judiciary and their security of tenure in Guyana has been seriously affected, as successive Presidents and Leaders of the Opposition have failed to reach agreement on the appointments of Chancellor of the Judiciary and Chief Justice over the last 13 years. There have been no appointments to the substantive posts of Chancellor and Chief Justice since 2005, when the former Chancellor, Honourable Madam Justice Desiree Bernard demitted office on her appointment as a Justice of the Caribbean Court of Justice.
 ‘Acting’ Chancellors and ‘Acting’ Chief Justices in Guyana since 2005
Honourable Mr Justice Carl Singh, who held the substantive office of Chief Justice, was appointed as ‘Acting’ Chancellor in 2005. No agreement was reached between the then President and the Leader of the Opposition, on his substantive appointment as Chancellor. Justice Singh continued in office as ‘Acting’ Chancellor until his retirement in 2017.
When Honourable Mr Justice Carl Singh was appointed as ‘Acting’ Chancellor, Honourable Mr Justice Ian Chang commenced 'Acting' as Chief Justice and continued in that office until his retirement in 2015. No agreement was reached by the politicians on his substantive appointment.
Honourable Madam Justice Yonette Cummings-Edwards was appointed to sit as ‘Acting’ Chief Justice when Honourable Mr Justice Ian Chang retired in 2015. No agreement was reached by the politicians on her substantive appointment.
She continued in that post until she was appointed as ‘Acting’ Chancellor of the Judiciary in March 2017.
Honourable Madam Justice Roxane George-Wiltshire was appointed to sit as ‘Acting’ Chief Justice in March 2017.
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. 
 Honourable Justices of the CCJ have criticized the failures to reach agreements 
Two members of the Caribbean Court of Justice (CCJ) have rebuked Guyana for placing pressure on the independence of senior members of the Judiciary by having them sit for several years in offices in which there is no security of tenure. Honourable Justices Sir Dennis Byron and Adrian Saunders have criticized the trend over the last 13 years whereby members of the Judiciary have not been substantively appointed, but have sat as ‘Acting’ justices for several years on what has been described as ‘probation’.
Sir Dennis Byron delivered an address to the Guyana Bar Association in November 2017, whilst he was President of the CCJ, in which he stated as follows:-
“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) 
Honourable Mr Justice Adrian Saunders, who was sworn in as President of the CCJ on 4 July 2018, made a speech on 24 May 2018 in Guyana, in which he drew attention to Sir Dennis Byron's criticisms :-
“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). 
An Independent Selection Commission is suggested by way of reform of the process of selection of Chancellor and Chief Justice of The Cooperative Republic of Guyana
The current constitutional processes of selection have been ineffectual. A 13-year period of ‘Acting’ Chancellors and Chief Justices is wholly unacceptable in a democratic society, which seeks to uphold the principles of Rule of Law, Separation of Powers and Independence of the Judiciary.
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. 
Colin Bobb-Semple, LL.B (Hons.) (London); LL.M (London); M.A. (Brunel); Lecturer in Law; Non-practising Solicitor/Higher Court Advocate (England and Wales)/ Attorney-at-law (Guyana)/ Barrister and Solicitor (St. Christopher and Nevis, Eastern Caribbean)
 References
Bobb-Semple, C. How Independent is the judiciary of the Cooperative Republic of Guyana, South America? (LinkedIn July 3, 2018)
 Joseph Raz, The Rule of Law and its Virtue (1977) 93 Law Quarterly Review 195
 Website references
Guyana Times press Report: CCJ President slams delay to confirm acting Chancellor, Chief Justice, November 15, 2017
 International Commission of Jurists: The Rule of Law in a Free Society, Declaration of Delhi (1959)
Stabroek News press Report: Ongoing lack of substantive Chancellor, CJ ‘significant stain’ on rule of law, May 26, 2018
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