Executive has some influence over Judiciary – US State Dept
– despite Constitution providing for independent Judiciary
A report from the United States (US) Department of State has raised concerns about Guyana’s legal system when it comes to settling cases, noting that many perceive the hearing of some civil matters to be unfair and in some cases, influenced.
According to the State Department’s Bureau of Economic and Business Affairs in its investment climate statements for 2018, the Executive appears in practice to have some influence over the judicial branch.
“Though the Constitution of Guyana provides for the independence of the Judiciary, in practice, the Executive has some influence over the judicial branch of the Government. The hearing of civil matters is a slow process and many perceive it to be unfair,” the report states.
The report acknowledges that there are no known examples of Executive interference in the court system that has adversely affected foreign investors. But it warns, however, that the judicial system is generally perceived to be slow and ineffective in enforcing legal contracts.
“Suspected corrupt practices and long delays make the courts an unattractive option for settling investment or contractual disputes, particularly for foreign investors unfamiliar with Guyana. In order to redress this obstacle to investment, the [Government of Guyana] GoG, with support from the Inter-American Development Bank (IDB), established a Commercial Court in June 2006.”
But the report advises that given Guyana’s growth potential and the burgeoning oil and gas sector, there is need for expansion and strengthened capacity building efforts to be made in the near future.
According to the report, sufficient legislation exists in Guyana to support foreign investment in the country. The problem, the report notes, is the implementation of relevant legislation, which it said continues to be inadequate.
All companies should conduct due diligence and seek appropriate legal counsel for any potential questions prior to doing business in Guyana,” the report states.
The report noted that Guyana’s legal system, like most Commonwealth countries, follows the English Common Law system, with some traces of the Roman-Dutch legal system, particularly in the areas of land tenure.
“In early 2005, legislative amendments were made to allow Guyana’s accession to the Caribbean Court of Justice as its final Court of Appeal. Guyana’s Supreme Court of Judicature hears both criminal and civil matters.”
The State Department noted that judgements of other courts within the Commonwealth are considered judicial precedents if the local laws are silent on the matter.
This is similar to the no-confidence cases filed by the Government after the No-confidence Motion was passed against it last year. Since Guyana’s Constitution makes no mention of an absolute majority being required to pass the vote, Government referenced Parliaments in other jurisdictions in a bid to reverse the motion.
Indeed, the Court of Appeal ruled in a 2:1 split decision last month that a majority of 34 votes would have been needed to validly pass the No-confidence Motion brought against the Government last year.
While Justice Rishi Persaud had dismissed the appeal and conferred with the ruling of the High Court, his colleague appellate Judges allowed the State’s appeal.
Both Justices Yonette Cummings-Edwards and Dawn Gregory opined that while 33 is the majority of the 65-member National Assembly, the successful passage of a no-confidence motion requires an “absolute majority” of 34, and not the “simple” majority of 33 that has been used to pass ordinary business in the House. This case has since been passed on to the Caribbean Court of Justice (CCJ), where it will come up for hearing next month.