Judges Don’t sit on a ‘Divine’ Bench: Their Decisions Can be Criticized by Citizens

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By Dr Tara Singh

The evolution of Guyanese society from traditional (colonial) to post-colonial (independence) to modern (technological) status, has produced some needed institutional and attitudinal changes, but at varying degrees.

Not much attention has been given to the evolution of the legal system, including the Judiciary, except that the PPPC government has recently embarked upon a major law reform project. Guyana has not yet developed a coherent system of judicial philosophy. Had this been the case, there would not be so many disparities, for example, in sentencing. Whether this is the result of the legacy of colonialism is difficult to determine.

Prior to 1953, the planter class (plantocracy) had controlled the legislative, the executive, and judicial branches. They functioned like the oriental despotism (total power, total terror) of Ancient Egypt, Hellenic Greece, Imperial Rome, Imperial China, and the Moghul Empire. The Guyana Judicial system under colonialism displayed many despotic features and was bereft of any judicial philosophy to guide Magistrates and Judges. Instead, the collective mission of the three interlocking branches of government was to push forth capitalist exploitation and the maximization of profits for the absentee plantation owners in Britain. Workers’ welfare was degraded.

A fundamental doctrine of democracy, “Separation of Powers,” was never practiced in plantation society: those who owned the plantations also controlled the ‘Court of Policy’ (legislative) and the Combined Court (finance) as well as the Judiciary. However, there was one period (1897 to 1928) when Coloreds and Creoles began to make an important break- through in the Court of Policy and had been able to block budgets and other measures. The impasse over budgets and other measures, however, culminated in 1928 with the suspension of the 1891 constitution (that favored Mullatos, Portuguese, Creoles, and East Indians) on the recommendation of the 1926 Wilson-Snell Commission of Inquiry. The Court of Policy and the Combined Court were abolished and replaced with a single Legislative Body. The introduction of the Crown Colony system was a retrograde constitutional step; it ensured that the planters were again in full control of all aspects of governance until 1953.

There were some constitutional changes between 1930 and 1953, but it was not until 1953 that the doctrine of Separation of Powers was operationalized in Guyana. From then to 1966 (Independence) there were further constitutional changes (1957, 1961, 1963) imposed by the British government and those were followed in 1980 with the introduction of a new constitution by the PNC government.

During the 1970s, the PNC nationalized the commanding heights (80%) of the economy. The ensuing changes in the economy were dramatic for which people were ill prepared. A National Security Act that was passed in 1966 was re-enacted in 1973 to suppress dissidence. It was repealed in 1991. To further consolidate its power, the PNC in 1973 enforced its doctrine of Party Paramountcy, which meant that all arms of the government, including the Judiciary, came under its control. The PNC flag was flown on government buildings, including the Guyana Court of Appeal. Those moves created massive social upheavals and thousands of Guyanese fled the country fearing the onslaught from the raging dictatorship.

The nationalized industries would soon falter and by the mid-1980s the country became bankrupt. PNC President Desmond Hoyte was forced to negotiate an austere Economic Recovery Program (ERP) with the IMF. After the 1992 elections and with the accession of PPPC to state power, democracy returned to Guyana. Separation of Powers was restored in theory and practice, and in keeping with the democratic tradition, over 200 changes were made to the 1980 constitution in the early 2000s.

Under colonialism, the situation was different; social and political consciousness was less developed. Furthermore, the system was designed to defeat them; workers were prevented from uniting to defend their rights, as per contracts. A few Judges had to assume activist roles to defend them. Sir Joseph Beaumont who served as Chief Justice (1863-1868) observed: “the system of government is not only that of a highly organized oligarchy; but a mercantile oligarchy, an irresponsible oligarchy founded on the traditions of slavery.” Beaumont not only clashed several times with Governor Hincks for making pro-workers rulings but also alienated employers by frequently over-ruling Magistrates’ decisions that were biased against workers. He was also regularly criticized by the planters’ press “The Colonial” for his rulings. Not surprisingly, Beaumont was dismissed in 1868 on a petition by the Combined Court and which had the firm support of Governor Hincks.

The colonial and post-colonial suppression of people must be replaced with opportunities for their freedom of expression and movement. Change which affects all institutions, including the Judiciary, is inevitable. The power of change is beautifully articulated by Karl Marx at his conspiracy trial in Cologne in 1849 when he proclaimed: “Society is not based on law, that is a legal fiction, rather law must be based on society; it must be the expression of society’s common interests and needs, as they arise from the various material methods of production…. The Code Napoleon which I have in my hand, did not produce modern bourgeois society. Bourgeois society as it arose in eighteenth century and developed in the nineteenth, merely finds its legal expression in the Code. …You cannot make old laws the foundation of a new social development, any more than these old laws created the old social conditions.”

Over the past three decades, the Judiciary operated in a somewhat sheltered environment, in the sense that it was impervious to criticisms. The inherited British reverence for the Judiciary found expression in 1992 and onwards. No one dare to openly criticize proceedings or rulings, especially if he/she is a litigant. The doctrine of ‘sub justice’ has been invoked to avoid discussion or criticism of ongoing cases. Sometimes the Judge might issue a “gag” order. The response of litigants so far to judicial decisions seems to be tepid. But with the growing desire for freedom of expression especially during the past two decades, the readiness to treat the Judiciary as a ‘divine’ entity has dissipated.
Why should an enlightened citizenry not criticize the Judiciary, for example, when it rejected the constitutional provision of the Carter-Price formula for the appointment of a GECOM Chair that had worked well for over 22 years? Why should citizens remain silent when someone was unilaterally appointed in October 2017 as GECOM chair contrary to the constitution? It was the Caribbean Court of Justice (CCJ) in June 2019 that overturned the Guyana Court of Appeal ruling that brought stability to the situation. In another glaring constitutional aberration, the Guyana Court of Appeal ruled in March 2019 that 33 is not a majority of a 65-House Chamber. That decision stunned not only legal scholars but also mathematicians, as well as the common person. In June 2019 the CCJ over-turned the Guyana Court of Appeal ruling indicating that 33 is a majority of 65. When Judges cannot determine that 33 is a majority of 65, don’t the public have a right to question their judgment?

Democratic norms and ideals in Guyana are aligned more to those of the United States than the United Kingdom. Following the ruling of the US Supreme Court that the 1973 Roe vs Wade ruling and subsequent reaffirmations, were unconstitutional, and that abortion is a matter to be decided by states and their voters, demonstrators spared no time to picket and ridicule the Supreme Court during the pre-trial as well as post-trial stage. They have also carried their campaign to Judges’ homes after the verdict was announced. The White House says that such demonstrations are allowable once they are peaceful. Not only picketing, but the Senate Majority Leader Mr. Chuck Schumer joined with the picketers to launch a trenchant critique on the Judiciary, singling out the Conservative Judges. Citizens have also started a campaign to impeach one of the Judges. And President Biden was equally prolific saying that the conservative Judges are extreme. The message is clear: Courts are not impervious to criticisms.
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The views expressed in this article are those of the writer and do not necessarily represent the position or policy of the THE WEST INDIAN.