Dear Editor,
An article written in the local media titled: “UWI lecturer: Some appellate rulings questionable; Roxane George is an exemplar of integrity,” calls for deep reflection and analysis. The UWI Professors Cynthia Barrow-Giles and Dr. Ronnie Yearwood just state what most Guyanese have known about the decisions handed down by the Guyana Court of Appeal (CoA) on elections 2020 related matters. But what Guyanese had needed to buttress their position was an intellectual underpinning, and this was provided by the Professors. However, to obtain a deeper understanding and analytic clarity of the political and legal dynamics, it is necessary to examine a few foundational principles of democracy at work.
For conceptual clarity, how does the average person view democracy or the democratic process? Thinking hard about this issue and combining this with research suggest that the core elements are free and fair elections at regular intervals; having an opposition that functions as the alternate Government; sovereignty resides in the people; plus, an amalgam of rights (the right to vote, right to privacy, right to equal access to opportunity, right to practice one’s religion, etc.) and freedoms (the press, assembly, speech, etc). At a practical working level, the most significant element of democracy is the doctrine known as “Separation of Powers,” which in theory is fundamental to safeguarding citizens’ rights and freedoms.
When Alexis de Tocqueville visited the United States in 1831 to study the prison system, two principles of governance captured his imagination; namely, equality and individualism. He believed then that these foundational principles are essential for the expression of freedoms and rights. It was, however, Baron De Montesquieu whose study of the British Constitution allowed him to articulate the critical role of the Separation of Powers (SP) in preserving democracy, including the related rights and freedoms. This SP was incorporated in the US Constitution in 1788. The separation of the three branches of Government (legislative, executive, and judicial) is regarded as a bedrock of democracy. But each branch is not necessarily independent and/or separate.
While the 1980 Guyana Constitution, with amendments, replicated the British model of Separation of Powers, the reality is that the legislative and executive branches are not separate either in form or content. In the American model of Separation of Powers, where the three branches are separate and independent, the Cabinet (executive) members, consisting of Secretaries, are not legislators. In Guyana, the Cabinet (executive) comprising ministers also serve as legislators. This American model would have been more appropriate to Guyana. In Guyana, only one branch of Government, the Judiciary, is regarded as separate and independent.
Whether the Guyana Judiciary performs in accordance with the noble principles of neutrality and independence has been subject to critical review, especially following the passage of the NCM (No Confidence Motion) in December 2018. A substantial number of Guyanese were unhappy with the decision of the Guyana Court of Appeal (CoA) to uphold the unilateral appointment of Justice James Patterson as Chair of GECOM, in contravention of the existing constitution. It was left to the apex court, Caribbean Court of Justice (CCJ), to set aside that decision. There followed a series of election cases and judicial action (including the astonishing CoA ruling that 34 is a majority of a 65-seat Parliament) that heightened Guyanese anxiety about the role and status of the CoA.
A new concept has been used to describe this situation; it is called the ‘judicialisation of politics’ (JoP) where Judges were expected to make political decisions.
Observed a senior PPP executive, “Once again, we have seen irrefutable evidence of a particular trend in judicial decisions that are crucially political.” The 34 majority and other CoA decisions were set aside by the CCJ. The JoP is a matter of deep concern, since it implies that the Judiciary is infected with a political virus that affects its ability to achieve judicial independence.
It was not surprising, therefore, that UWI Professor Cynthia Barrow-Giles, who led the Caricom Recount Team to Guyana in the 2020 elections, observed during a workshop on ‘The Judiciary and the 2020 Guyana elections’ that “some of the judgments from the Appellate Court [Court of Appeal] raise questions as to whether the Courts are as independent as they ought to be.” Her colleague, Dr. Ronnie Yearwood, believes that concern is “proven in the many rulings from the Guyana Court of Appeal which overturned High Court rulings later being corrected by the Caribbean Court of Justice (CCJ).” This situation prompted Dr Yearwood to comment further: “There might be a connection between the appointment process and some of the judgments, and we need to ensure the complete separation of powers.”
Apart from one blemish, when Justice Roxane George-Wiltshire ruled that David Granger had the authority to appoint the GECOM Chair James Patterson, an appointment deemed unconstitutional by the CCJ, the professor praised the judicial excellence of Justice Roxane George-Wiltshire, and endorsed a statement: “There was one silver lining behind the entire cloud of the Guyana 2020 election…Roxane George as an exemplar of probity, integrity and independence…without her, I shudder to think where that saga would have ended.”
Some repair work must be done to improve the image of the Judiciary as well as its independence, to win the confidence of the Guyanese people. Once this is achieved, the Judiciary could still serve as a bastion of democracy.
Sincerely,
Dr Tara Singh
