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.

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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.

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THE CCJ’S CLEAR PREFERENCE IS FOR A POLITICAL RESOLUTION


At the last two hearings of the cases before the CCJ, the clear preference was expressed by the Court for a political resolution of the NCM (no confidence motion) case. The Court, like everyone else, is fully cognizant of the political implications of any consequential order, especially having regard to the disputes over the voters’ list. At the last sitting of the Court, the President, Justice Adrian Saunders, expressed exasperation that the parties did not even meet, much less have discussions on the way forward. The Court is obviously anxious that what appears to be an explosively political matter should have a political solution which would satisfy all parties, rather than orders by the Court which may satisfy no one or only one. At the time of writing the President and Leader of the Opposition have not met.

The legal challenges by APNU+AFC initially appeared to be only a play for time. It was successful because the Government has obtained several additional months of life. More time is expected but even more is being demanded. A new voters’ list by house to house registration is demanded on the basis of vastly exaggerated and unproved claims about alleged defects in the list. These claims are that the list is bloated by 200,000 names and 18-year olds are not registered. This is the same list that was used for the recent local government (LGE) elections and there were no complaints. 18-year olds were extracted from the national register which registers persons from the age of 14 for the list used for the LGE. The same will apply for the voters list for new elections. Claims and Objections (C&O) will take care of any omissions. The latest play for time is that the list will not be ready until December 25. Both the 1990 and 1997 house to house registration took approximately eighteen months. On the evidence of the past, therefore, once house to house registration starts, there will be no elections until the end of 2020, if then.

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THE CONSEQUENTIAL ORDERS


The Caribbean Court of Justice (CCJ) has ruled in two of the most important constitutional cases that have engaged its attention in its ten-year history. The cases from Guyana have their origins in Guyana’s troubled political history and struggle for ethno-political dominance. In the first case the CCJ decided that the appointment by President Granger of the Chair of the Elections Commission on October 19, 2017, violated the Constitution. In the second case, it decided that the no confidence motion passed in the National Assembly on December 21, 2018, in a 33 to 32 vote, was lawful and valid.

President Granger declared that the Government accepted the decision but insisted that the appointment of the Chair of GECOM was not flawed, and if it was, the CCJ must let him know what the flaw is. The CCJ had already noted that President did not reveal what were the flaws in the 18 names presented to him by the Leader of the Opposition for appointment as Chair of the Elections Commission. In any event, courts do not respond to political interrogation, and it is the job of the Attorney General to advise His Excellency.

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FATHER’S DAY


The best quote I have read among dozens in relation to Father’s Day while preparing for this article is this: “By the time a man realizes that maybe his father was right, he usually has a son who thinks he’s wrong.” At lunch during last week, my elder son, who has a nodding respect for my legal acumen, even though it (the legal acumen) is at best modest, if it has even reached that level, and who consults me frequently, pronounced once again that he has a dim view of politicians. I asked him what about his father. Without missing a beat, he responded: “No exceptions.” On the other hand, my younger son, who has a less positive view of my legal skills, and perhaps he is closer to the mark, but who consults me far more frequently than his elder brother, is interested in politicians, political developments and political history. He maintains a keen interest in the political life of his grandfather.

Father’s Day celebrates and honours fatherhood and emphasizes the importance and influence of fathers in society. The day is generally celebrated by children recognizing the importance of their fathers in their lives by showering him with gifts, their favourite food and much affection. Whether they say so or not, they recognize and reward their fathers for being present in their lives, for ensuring their well-being as children and for guiding them through life. The celebration cannot be achieved without generous assistance from the mothers, particularly where the children are not yet adults and do not have the resources to purchase gifts or mount a celebration. It’s a family affair and reinforces the unity and strength of the family.

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