It has long been recognized that the judiciary and its decisions are not and should not be immune from criticisms. It’s quite a different matter to attribute motives to the judiciary that can be construed as improper such as failing to consider or to implement executive policy. Two contrasting approaches were displayed recently by Mr. Aubrey Heath-Retemeyer, Deputy Director of the State Agency for the Recovery of Assets (SARA) and Minister Khemraj Ramjattan, Minister of Public Security.
Mr. Aubrey Heath-Retemeyer’s, in an interview by KN on June 22, accused the judiciary of resisting the government’s drive to reduce corruption because they are not willing to facilitate SOCU or SARA. He said that there is a “stark disconnection between the judiciary and the thirst of the nation for an end to corruption…I feel that sometimes the legal system here…doesn’t want to be in step with the honest desire of the law enforcement people (like SOCU) to ensure that they get the job done. I feel that if there was a greater sense of urgency and understanding on the part of the legal people and the system, they would be more willing to facilitate what SOCU or SARA would be doing.”
I will stay away from the continuing controversies between the current and past Attorneys-General. To coin a phrase, when elephants rumble, it’s the insects in the grass who get trampled. I will likewise stay away from the merits or otherwise of the Chief Justice’s decision ordering the Minster of Legal Affairs to bring the Act into force. It is likely to be appealed and the Court of Appeal will decide. But why is the Judicial Review Act important to the public?
There is an area of law called ‘public law.’ While much law notionally exists for the protection of the public, ‘public law’ more directly protects the rights of the citizen in his or her relations with the state and public bodies or authorities by holding them to account. The instruments used by the courts in public law are of ancient origin, initially directed against the King, and are called writs of certiorari – to quash a decision, mandamus – to order something to be done, prohibition – to prohibit an act and the lesser known, quo warranto – challenging the right to hold an office. The writ of habeas corpus – ordering the production of a body, is linked to these. They are called ‘prerogative’ remedies issued by courts on the application of citizens for ‘judicial review’ to enforce their rights against the state or public authorities. Currently, these are the only remedies available in public law.
I adopt the sentiments of Lincoln Lewis, who writes frequently on constitutional matters. He said in last Sunday’s Chronicle: “We are facing a very serious situation and what I am about to say is intended to right a ship, veering wildly off course and posing dire implications for the rule of law, the legitimacy of the executive, and protecting the well-being of the society.” Mr. Lewis cited the following instances where the authority of the executive and limits of the President have been exceeded: 1. The termination of leases in the MMA; 2. (Mis)Interpretation of criteria for Gecom chair; 3. The termination of Red House lease; 4. Seeking to possess the property of Clarissa Riehl; 5. Instructions given to the Police Service Commission not to act on a list for promotions. While Mr. Lewis’s did not explicitly say so, his conclusion is that the court rulings suggest that the constitution is being violated.
A strong editorial in the Stabroek News of August 21 did not mince words. Additional violations were cited in extenso:”…the directive issued by Minister of State Joe Harmon on June 26 to the Police Service Commission (PSC) in the name of President Granger for the halting of the police promotions process must be condemned as an attack on constitutionalism….Given President Granger’s flawed reading of the constitutional provisions relating to the appointment of a Chairman of the Guyana Elections Commission, his unconscionable delay in acting upon the recommendations of the Judicial Service Commission and the May 2015 attempt by Minister Simona Broomes to issue an instruction to the Public Service Commission, which was later ruled ultra vires by the High Court, a pattern of highly worrying behavior has emerged. It is clear that when it suits the President and the government to ignore constitutional precepts – in this case the vital insulating of service commissions – it is prepared to do so. Two and a half years into its term of office, this tendency is rife with jeopardies to constitutional rule and the rule of law. It also adds to the unpleasant legend of the PNC’s undemocratic rule of the 70s and 80s, the flying of colours of the party over the Guyana Court of Appeal and the entrenching of paramountcy of the party as enshrined in the Sophia Declaration.”
Alexandra Kollontai (1872-1952) was a leading Bolshevik and the earliest champion of women’s rights under the new Soviet government. From an aristocratic background, she was attracted to left wing ideas as a student and in 1899 joined the Russian Social Democratic Labour Party, under which name the communists were first organized. Kollontai devoted her energies, in exile and in Russia, to develop strategies for the organization and education of women and their involvement in the struggle against tsarism and capitalism, in unity with and as an equal partner of men. She also sought to liberate women’s sexuality as part of the liberation of women in general and promoted ideas that may appear to be quite acceptable now but which were somewhat advanced for the immediate post-feudal era in Russia (‘sexuality is a human instinct as natural as hunger or thirst’). Although Kollontai encountered much resistance by her male comrades, she nevertheless persisted and earned the support by Lenin. While she was eventually banished to a diplomatic post because of her factional struggle against bureaucracy as a member of ‘The Workers Opposition,’ her ideas heavily influenced the Soviet agenda on women and family issues. It is believed that one of the reasons that she survived the Stalin purges was because of her popularity.
In an article, ‘Why Women Had Better Sex Under Socialism’ in the New York Times of August 12, by Kirsten R. Ghodsee, a Professor of Russian and East European studies at the University of Pennsylvania, recognition was given to the role of Alexandra Kollontai. The writer said: “After the Bolshevik takeover Vladimir Lenin and Alexandra Kollontai enabled a sexual revolution in the early years of the Soviet Union with Kollontai arguing that love should be freed from economic considerations.” The ideological foundation for women’s equality had been laid by earlier writers such as August Bebel and Frederic Engels. Thus, suffrage was extended to women in 1917, immediately after the revolution and three years before the US. This was followed by the liberalization of divorce laws and freedom being given to women over reproductive rights. Unwanted pregnancies were reduced by extensive sex education.
The judiciary is one of the three branches of Government. It is a vital component of our democratic system and for this reason needs to function with a high degree of proficiency. Even though most citizens go through their lives without having to invoke the assistance of the judiciary to protect or defend their rights against other citizens or the State, nevertheless the judiciary is a bulwark against the violation of those rights. Citizens need to be assured that there is a fair and impartial judiciary that can deliver justice in a timely manner in the even that they need to call on its protection.
In the business community, commercial disputes arise frequently, although, like the general population, most go through their business without ever having to revert to the judiciary to solve disputes. A judicial system that can rapidly resolve commercial disputes is necessary not only to keep business activity turning over but to sustain confidence in the business community, both local and foreign, to invest or continue to invest in Guyana.