(Following is an opinion piece written by former Attorney General Mohabir Anil Nandlall, MP)
Over the past two years, I have had cause to lament incessantly about the comatose state in which the Guyana Bar Association and the Guyana Association of Women Lawyers in particular, and to a lesser extent organisations such as the Red Thread and the Guyana Human Rights Association, seemed to have plummeted. On occasions I may have been overly cynical, if not disrespectful. I am not sure that I have any regrets. Maybe that is the medication needed to
Anil Nandlall
remedy the situation and revive consciousness.
As a consequence of this comatose state mentioned above, a gaping void has been left in the fabric of the Guyanese civil society, and this has crippled its capacity to express that crucial voice of criticism and condemnation against an avalanche of abuse of power, unconstitutionalities, attacks upon individual judges and the independence of the Judiciary, violations of human rights of the citizenry, undermining of democratic institutions of the State, abrogation of the doctrine of separation of powers, emasculation of independent watchdog institutions, and rampant trampling upon the Rule of Law, which have enveloped this society.
Some may argue that the matters to which I have alluded may have been occurring for far in excess of two years. That may be so, but that is no basis for them to continue. Moreover, I doubt that anyone can credibly traverse the assertion that the organisations to which I have referred have never been as dormant as they have become over the past two years.
New executives elected
Last week, a new executive committee was installed by the Guyana Association of Women Lawyers.
This week, a new executive assumed the mantle at the Guyana Bar Association. I attended and voted at the latter organisation’s elections. I was both pleased and surprised at the turn-out of my colleagues for these elections. It was the largest I can recall in over a decade! The Senior Bar, the Middle and the Junior Bar were all adequately represented. More significantly, I was enthused by both the positive energy and the level of camaraderie which permeated the atmosphere at the Annual General Meeting of the Association.
I sensed a clear signal that the profession has recognised that the Guyana Bar Association simply cannot any longer continue its perfunctory functioning and hapless monotony — whether caused by the electoral polity of 2015, a dilution of the cannons of ethics of profession, or sheer incompetence — if it is to regain the respect and public confidence from which it has so profusely haemorrhaged over the last few years.
It was truly a breath of fresh air. I detected no latent or patent ulterior, tribal, or political undercurrents which have contaminated so many elections of the past. Kamal Ramkarran’s election as the President was unopposed and unanimous. So was the election of every other member of the twelve-person executive. The executive boasts a unique admixture of youth, experience, gender and ethnicity. When one examines each of the elected members and their affiliations both within and without the profession, it is difficult to imagine a more balanced slate.
In his brief remarks after being elected, President-elect Ramkarran immediately but cordially recognised the vacuum which the last executive had left, while at the same time, and with candor, acknowledged some of the atrocities which have taken place in recent times, to which I have alluded above. Mr Ramkarran committed his team to, inter alia, speak out against these abuses and violations after due consultation with the membership of the Bar. I will certainly hold them to that commitment.
Defending independence
of Judiciary
I have often written about the indispensability of an independent Judiciary and a functional and competent justice system to the well-being of a civilized, democratic, and economically flourishing society. The legal profession is expected to play a fundamental role in the process as well.
In the case of S.P Gupta v Union of India (1982), 2 SCR 365 at 533-4, the legendary Justice Bhagwati outlined the role of lawyers and their association in the equation as follows: “The profession of lawyers is an essential and integral part of the judicial system, and lawyers may figuratively be described as priests in the temple of justice. They assist the court in dispensing justice, and it can hardly be disputed that without their help it would be well nigh impossible for the court to administer justice. They are really and truly officers of the court in which they daily sit and practice. They have, therefore, a special interest in preserving the integrity and independence of [the] judicial system, and if the integrity or independence of the Judiciary is threatened by any act of the State or, nay, public authority, they would naturally be concerned about it, because they are equal partners with the judges in the administration of justice…They [have] clearly a concern deeper than that of a busybody, and they cannot be told off at the gates.”
Protecting and defending the integrity and independence of the Judiciary is a critical functional responsibility of the legal profession. In relation to a specific reference to the criticism of judges by politicians, a District Judge of the US observed thus:
“Members of the bench and bar share a professional responsibility to strengthen public confidence in our judicial system. The organized bar, and for that matter individual members of the bar, can discharge the responsibility by being alert to opportunities to correct misconceptions and misleading criticisms of judges and their decisions, and the justice system generally” [Judge Phillip M. Pro: the Nevada Lawyer, February, 1999]
Even closer to home, Douglas L. Mendes SC, a former President of the Law Association of Trinidad and Tobago, in 1999 posited:
“Members of the Bar, and by extension their associations, do have a vested interest in an independent Judiciary. An independent legal profession is generally recognized as being essential for the maintenance of the rule of law and the protection of fundamental rights and freedoms. Executive or legislative violations of constitutional rights will go un-redressed unless lawyers are willing to invoke the Judiciary’s powers of review. However, it would be impossible for lawyers to begin to advise their clients accurately, or even to pretend that justice might be achieved and the rule of law vindicated, if the impartiality of the Judiciary was not assured.”
Public onslaughts
Conventionally, judges are not permitted to enter into public debates. They cannot defend themselves from public onslaughts. Our legal system does not permit them the facility to do so. Therefore, they do not, and cannot, enter into public confrontations. The result is that they are placed in a precarious conundrum. Justice Kirby expressed the dilemma this way:
“When judges are submitted to unrelenting attacks by people who should know better, there is a danger that the public will draw from the silence of judges an implication that the criticism was justified. Yet silence is ordinarily imposed by judicial convention. Generally, judges cannot answer back. At least most cannot do so in effective forums. From inexperience, their attempts to respond sometimes result in compounding their problems and demeaning their office.”
It is the legal profession, either individually or as a collective through its association, that is expected, and indeed whose duty it is, to speak out in defence of the Judiciary in these circumstances. Finally, Bar Associations owe a responsibility to educate the public on matters relating to the rule of law, and to apprise them of their legal rights and responsibilities. Mr Mendes SC, explained the issue with this exhortation: “Bar Associations also have the ongoing responsibility to educate the public on the importance of judicial independence to the maintenance of the rule of law and a democratic way of life…in so doing, they will also educate the Executive on the boundaries which they find the separation of powers.”
It is clear, therefore, that Kamal and his team have their work cut out for them if they are to discharge the conceptual responsibilities of a Bar Association. Are they capable of so doing? Of course they are. Do they have the will to do so? We will have to wait and see. Either way, I am prepared to offer my two cents’ worth.
I wish them well.
