ADJUSTING TO AN INCREASINGLY INDEPENDENT JUDICIAL CULTURE


Grumbles of dissatisfaction were heard from the PPP/C Government when the Caribbean Court of Justice (CCJ) ruled against the Government and in favour of Trinidad Cement Limited (TCL) in 2009. TCL had taken the Guyana Government to the CCJ for violating the Treaty of Chaguaramas by not seeking COTED’s permission prior to importing cement from outside the Region. The Court found in favour of TCL but the Government of Guyana got off by the skin of its teeth on the claim by TCL of US$250 million damages. The PPP/C Government was held liable for several other violations of the Treaty. In the case of the Surinam company, Rudisa, which challenged at the CCJ the imposition of an ‘environmental’ tax on plastic bottles, the CCJ ordered the Guyana Government in 2014 to pay Rudisa US$6 million in damages. In 2017 in a similar case filed during the PPP’s term of office the CCJ ordered the Guyana Government to pay S. M. Jaleel & Co. Ltd., a Trinidad company, the ‘environmental’ tax unlawfully collected being US$11 million with interest. A future PPP/C Government will hopefully understand in future that there are consequences if it blithely ignores laws and treaties. It would have to adjust to an increasingly independent judicial culture. But emerging from an authoritarian political and judicial culture, this was not supposed to happen, even in strictly commercial matters which had no political implications.

Many PPP leaders and supporters were grossly disappointed when the CCJ overruled the decision in the Attorney General v Richardson case in which the Court of Appeal had decided that the constitutional provision limiting a president to two terms was unconstitutional. The CCJ decided that the provision did not violate the constitution. The effect of the decision was that the former President Jagdeo could not be nominated for a third term as president. The CCJ demonstrated that it was prepared to cut through the dense thicket of esoteric, interpretative, dicta and adopt a purposive determination to reflect the intent of the constitution.

With less confidence than the lawyers for Richardson had displayed, the APNU+AFC challenged the no confidence motion (NCM) passed against its Government on December 21 last and the legal status of Charrandas Persaud, the governing coalition member of parliament, who had voted with the Opposition, which had one seat less than the Government. The Constitution disqualifies dual citizens, such as Persaud, from membership of the National Assembly. In the most consequential court decision affecting the life of a sitting Government since Guyana’s Independence, the Chief Justice (ag) upheld the NCM and the membership of Persaud to the National Assembly. Adopting the same approach described above, although the issues were less challenging than in the Richardson case, but more consequential, the CCJ reversed the decision of the Court of Appeal which had itself reversed the decision of the Chief Justice on the validity of the NCM.

As a consequence of the CCJ’s decision, a controversy, simmering for months, has erupted in connection with house to house registration for a new voters’ list. While the President of the Court, Justice Adrian Saunders, waved the limiting boundaries of the Constitution requiring elections in three months after a NCM, by which he declared that the Court is bound, Minister Tabitha Sarabo-Halley boasted: “House-to-house registration is going to happen” and Minister Volda Lawrence emphasized: “No compromise on house to house registration.” Neither explained how this is going to happen if the effect of the CCJ’s consequential orders is that elections be held in three months or thereabouts.

Staying with the Courts, the independent judicial culture and the headlines, one screamed yesterday, “Finance Minister could go to jail Monday.” The High Court had ordered Minister of Finance Winston Jordan to be imprisoned for 21 days unless he paid a judgment of US$2.2 million obtained by Dipcon, a Trinidad construction company, against the Government by Monday. He applied to the Full Court of Appeal for a stay of execution of the High Court’s order. The Full Court refused to grant the stay. Ordering that a Minister of the Government be imprisoned for any reason is unheard of in Guyana or in the Caribbean region for that matter. The clear message is that the rule of law, not ministerial or governmental diktat, prevails and the courts will unhesitatingly uphold it.

The decisions in the NCM case and in the contempt case against Minister Jordan were all heard by women, with one exception in the Court of Appeal where the third Judge was Justice Rishi Persaud who had given a dissenting judgment. Whether this is a fortuitous circumstance or not, judges of Guyana are making history by demonstrably delineating a path that is clearly distinguished from, and independent of, the executive. This had to happen, sooner or later. Hopefully, this trend will strengthen as time goes by.

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