May 20, 2017 Source

Dear Editor,

No one can sensibly dispute that an independent and effective judiciary is not only the sine qua non of any democracy, but it is the very foundation upon which the edifice of civil society rests. “If the judiciary is to perform its functions and duties effectively and remain true to the spirit with which they are sacredly entrusted to it, the dignity and the authority of the courts have to be respected and protected at all costs otherwise, the very cornerstone of our Constitutional scheme will give way, and with it will disappear the rule of law and the civilized life in the society.” (Justice Sawant: Re Vinay Chandra Mishra (1995) 2 SCC page 584). Although the above statement was uttered by a judge of the Indian Supreme Court, that it rings true of the Guyanese judiciary and indeed judicial systems everywhere, there can be no doubt.

No dispassionate mind can credibly justify the Attorney General’s contumacious outburst in open court before High Court Judge Mr Franklyn Holder, a few weeks ago. As an eye witness to the incident, I say that the judge’s recitation, in a letter to the acting Chancellor, of what transpired on that fateful day, does not only coincide with my interpretation of the events, but the adjectives used by the learned Judge to describe the Attorney General’s conduct, graphically but accurately captured the tone, mood and electricity of the atmosphere at the time. I could not have proffered a better recollection. In that letter the Judge indicated that he made a finding that the Attorney General committed contempt in the face of the court. The Judge demanded an apology from the Attorney General.  The Judge’s letter was published by the media, verbatim.

On the 8th of May 2017, when the case resumed, the Judge not only reiterated his finding of contempt but indicated that the Attorney General’s subsequent public statements aggravated the contempt. The Judge was emphatic that he had not lost the power to cite the Attorney General for contempt. Why he did not do so, nor has yet done so, is a disappointment to most law-abiding citizens.

It is against this backdrop that the President’s statements made on the 17th of May 2017, at the swearing-in ceremony of two appellate court Judges, must have shocked the conscience of the right-thinking Guyanese public. The President is quoted in the press, as saying, “I cannot see that there was anything which could have warranted his being cited for contempt of court. As I said, his behaviour was not being contemptuous so in that regard there cannot be any justifiable call for an apology because his behaviour was not in contempt of court”.

That these sentiments, emanating from the Head of State are abominable on so many dimensions, may yet be an understatement. Under the doctrine of separation of powers, a fundamental pillar of our constitution, the sole and exclusive responsibility of being the final arbiter of legal issues within our system of governance resides with the judiciary. Whether a person is guilty of contempt of court or not, is a legal question to be determined only by the judiciary. Justice Holder has already pronounced that the Attorney General has committed contempt in the face of the court. This is a conclusive pronouncement on the matter by the lawful constitutional authority. If it is wrong, the judiciary itself offers a procedure to rectify wrong judicial decisions. The raison d’être of the separation of powers principle is to insulate the legislature and the executive from trespassing upon the functional domain of the judiciary and vice versa. The President’s statements have obviously disregarded this sacrosanct constitutional doctrine.

Unfortunately, it is not the first time that the President is publicly quoted as making final pronouncements on legal issues, thereby lending to a usurpation of judicial functions. On or about the 29th December 2016, a public statement, emanating from the Ministry of the Presidency, quoted the President as pronouncing that the 99 year old lease, issued to the Cheddi Jagan Research Institute Inc, in respect of Red House, was invalid, and ordered that the tenants be evicted therefrom within 48 hours. As invalid as anyone may perceive a lease to be, it is common ground that its validity, or lack thereof, and whether or not tenants in a demised premises should or should not be ejected, are purely complex legal issues to be conclusively and lawfully determined by the judiciary and no other authority, in accordance with the doctrine of separation of powers. Just imagine the social chaos and disorder which would erupt in this land, if every landlord arrogated to himself the power and authority to determine that a tenancy is invalid and took steps to eject his tenants without any resort to the court.

There is still yet another dimension. It is judicial independence. At the very ceremony, the President assured the nation that there is no political interference in the judiciary. This assurance must ring hollow in the face of the President’s inordinate delay in acting upon the advice of the Judicial Service Commission, as well as his manipulation of that advice by not swearing in the advised persons as judges. This issue is exacerbated by his position on the Attorney General’s grossly insolent and irreverent attack upon a High Court Judge. Is the President not, subliminally, signalling to the judiciary that his ministers or the government, itself, can act  egregiously but still enjoy presidential support?

Yours faithfully,

Mohabir Anil Nandlall, MP