Whether it was due to the COVID-19 restrictions or not, the CCJ hearing that dealt with the appeal by the Opposition parties against the Court of Appeal’s decision to accept and declare itself in sole possession of jurisdiction to issue the substantive order it did on the elections matter brought became a very public affair as it was conducted over the Zoom platform that was available to the public. This was a very crucial development not only concerning this case on which the entire Guyanese nation, domestic and foreign, was transfixed but also for bringing law to the masses and out of the courts that have become forbidding fortresses.
As noted jurist Lord Atkins famously pointed out, “Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and the respectful, even though outspoken, comments of ordinary men.” This point of view goes back to the foundations of English jurisprudence and it is solidly grounded in hundreds of years of practice. The great Lord Diplock concluded that, “if the way that courts behave cannot be hidden from the public ear and eye, this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice”. Ultimately, a public hearing ensures that no man is above or below the law and that every individual and organ of the State is accountable for actions taken.
Public hearings on disputed issues before the Court build confidence in the administration and dispensation of justice especially when, as in this instance, the issues affect every citizen in the land. In a larger sense, the wide publicity institutes a form of democratic control through the cynosure of the public gaze that should help to give confidence in the operations of our judicial system. At a minimum, there has to be some awareness by the bar and bench that they need to ensure their arguments and questions are grounded in the concrete reality on the issues of which the public is seized. For instance, in the present matter, the ultimate issue is that the votes of the people must be counted to deliver a government that receives the majority of the votes.
While there can be a plethora of technicalities that can be raised procedurally and substantively in the courts, the facts of the matter cannot be lost sight of. As the erudite American Justice, Jed Rakoff, who is notoriously impatient with what he calls “legal gamesmanship”, noted: “An application of judicial power that does not rest on facts is worse than mindless, it is inherently dangerous. If its deployment does not rest on facts – cold, hard, solid facts, established either by admissions or by trials – it serves no lawful or moral purpose and is simply an engine of oppression.”
The CCJ will be issuing its judgement on Wednesday and we can be assured that there will be a cacophony of comments from the public, but more so, from the PNC-led APNU/AFC coalition. The latter have already conceded their weak case by their strident attacks on the CCJ by defining it as “extraterritorial”. They have taken the fact that Guyana is only one of four Caricom territories that have accepted its appellate jurisdiction as a sign of limited confidence in its impartiality. They have completely elided their founder leader Forbes Burnham’s point that the British Privy Council, which they have retained as their ultimate appellate court, is totally removed from the Caribbean reality and as such, would be challenged to observe Justice Rakoff’s admonition that all judgements must be grounded on the facts and context of the case under review.
It is our hope that the PNC and its partisans would remember the caution of Lord Atkins that preceded his above-mentioned aphorism: “The path of criticism is a public way; the wrong-headed are permitted to err therein, provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice.”
