Executive Excesses and Judicial Sloth

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Former Attorney General Anil Nandlall has accused the APNU/AFC Government of pursuing, over the past seventeen months, “an institutionalized policy of undermining, emasculating, interfering with and assaulting” the important independent constitutional agencies in Guyana whose critical functional responsibility is to have oversight of the Executive to ensure that the Executive acts within its powers and does not exceed and abuse its authority.

“Like every authoritarian, this Government perceives such scrutiny to be intolerable. As a result, a constant and incessant battle is being waged against these constitutional agencies either to embarrass, sideline or emasculate them,” Nandlall said in an opinion piece.

(Following is the full text of that opinion piece written by Mr Nandlall)

Ours is a constitutional democracy constructed upon the foundation of the doctrine of separation of powers. As Justice Saunders posits in Benjamin v Minister of Information (1997: “… our democracy rests on three fundamental pillars, the Legislative, Executive and the Judicial. All must keep within the bounds of the Constitution. The Judiciary has the task of seeing to it that the Legislative’s and Executive’s action does not stray outside of those boundaries onto forbidden territory. If that occurs and a citizen with standing complains, the court declares the trespass and grants appropriate remedies… For our democracy to operate effectively, it has been said that it is necessary that a certain comity should exist between the three branches. Each should respect the role and function of the other. The executive should respect and obey the decisions and accept the intimations of the court. If this comity does not exist, then the wheels of democracy would not turn smoothly a jarring and dangerous note will resonate from them.”

The principles adumbrated by Justice Sanders equally apply to relationships between the Executive and independent constitutional agencies.

Anil Nandlall
Anil Nandlall

Over the last seventeen months, this Government has been pursuing an institutionalized policy of undermining, emasculating, interfering with and assaulting these important independent constitutional agencies whose critical functional responsibility is to oversight the Executive to ensure that the Executive acts within its powers and does not exceed and abuse its authority. Like every authoritarian, this Government perceives such scrutiny to be intolerable. As a result, a constant and incessant battle is being waged against these constitutional agencies either to embarrass, sideline or emasculate them.

We have witnessed the hasty and precipitous actions of the Government to remove Mr. Carvil Duncan as Chairman of the Public Service Commission, a member of the Police Service Commission and a member of the Judicial Service Commission. The reason is clear. The Government obviously believes that they cannot manipulate and control Mr. Duncan. We saw the verbal onslaught to which the Auditor General was subject, by the Minister of Finance. All that the Auditor General was guilty of, was discharging his Constitutional mandate of highlighting the abuse by the Minister of the constitution and fiscal laws. We recently heard of the Government’s intention to by-pass the office of the Director of Public Prosecutions and to hire and, possibly, import, prosecutors to prosecute certain criminal cases, although the constitution vests the DPP with the exclusive responsibility to do so. Again, the reason for the Government’s intended action is obvious. They need prosecutors whom they can direct, manipulate and control. They cannot do so in respect of an independent DPP Office. We already know that SOCU and SARA, staffed with political appointees and politicians, are masquerading as law enforcement agencies and are directed to investigate persons identified by the Administration, including, leading members of the Opposition. The Guyana Police Force, which has had the exclusive statutory mandate to detect, investigate and prevent crime for the past 150 years, is being excluded. In their policy of interference and attack, even the Judiciary has not gone untouched. The Attorney General has engaged the Judicial Service Commission in a public confrontation in relation to the latter’s appointment of the Deputy Registrar of Deeds, a responsibility which the constitution clearly vests with the Judicial Service Commission. The matter is now the subject of legal proceedings. Only  recently, the Attorney General launched a most disrespectful public tirade against the Chancellor of the Judiciary, describing him as a “dictator” in the Judicial system.

The aforementioned examples are by no means exhaustive. But they vividly demonstrate that the “comity” which Justice Saunders opined should exist among these poles of constitutional power, is absent, largely because of the contempt with which these agencies are treated by the Executive. As a result what now obtains is precisely what Justice Saunders warned against: “If this comity does not exist, then the wheels of democracy would not turn smoothly a jarring and dangerous note will resonate from them.”

As a consequence, the sloth which has affected the Judiciary for decades has gotten progressively worse under this Administration. During my brief tenure as Attorney General, the statutory compliment of judges of the High Court was increased from 12 to 20; 5 judges were appointed to the High Court and 2 Commissioners of Title/Land Court judges were appointed. New Magistrate’s Court buildings were built and opened at Black Bush Polder, New Amsterdam, Sister’s Village, Number 53 Village, Wales, Lenora, Lethem and Wismar. Two Magistrate’s Courts were budgeted for to be built at Sparendam and a new Land Court building was also budgeted for to be constructed in the compound of the High Court, Georgetown. A new Mediation Center was built in New Amsterdam. Modern and technologically advanced voice recording equipment were purchased to be installed in the Court of Appeal and the High Court and trained staff were identified to operate these equipment. I had the privilege of supervising the establishment and work of two international Commissions of Inquiry: The Linden COI and the Walter Rodney COI. These equipment and staff were employed in both Commissions. From all indications they functioned with excellence and were able to generate large volumes of verbatim transcripts daily. I say all of this not to blow my own trumpet but to highlight the tremendous progress made in a short period. I wish to credit the Chancellor and his hard working team. However, these achievements would never have become a reality if strained relationships existed between the Executive and the Judiciary. It is the “comity” referred to above which produced these results.

Today, the position is different. Acrimony has replaced comity. The voice recording equipment has not been fully installed in the courts as planned. Though the Judicial Service Commission has made recommendations to the President for the appointment of several judges to the High Court and the Court of Appeal several months ago, no such appointment has been made. A reasonable inference that one can draw is that the nominees of the JSC do not meet the approval of the Executive. This is quite unfortunate because the approval of the Executive of the nominees of the JSC is not a constitutional requirement. The retirement of Chief Justice Ian Chang SC has created quite a void in the Judicial system. He was replaced by the Honourable Justice of Appeal, Mrs. Yonette Cummings-Edwards, thereby leaving the Court of Appeal, a 3 members Court, with only 2 judges. Every time the Court of Appeal sits, a Judge from the High Court is required to leave all of his/her cases in the High Court to go to the Court of Appeal. The consequences are chaotic in the High Court. The sloth has increased manifold. Perhaps one example will suffice. On the 27th of September, 2016, I filed an application in the High Court seeking certain Prerogative Remedies against, what I consider to be, the abuse of power by a Public Officer. As per the procedure, my application was made ex parte. Such an application would normally be heard by a Judge within two days (maximum) and it is either granted or refused at that hearing. This application was not heard by a Judge until the 27th of October, 2016. While that application was pending, my clerk enquired regularly of the Judge’s Registrar for a date for hearing. On almost every occasion he was informed that the Judge is in the Court of Appeal. When the matter was eventually heard, ie, on the 27th of October, 2016 the Judge adjourned the matter to the 4th of November, 2016, for ruling. On the 4th of November, 2016, the Judge is once again in the Court of Appeal and the matter is again adjourned to the 8th of November, 2016, for ruling. I intend no disrespect to anyone but every experienced legal practioner will tell you that this case demonstrates that the judiciary has reached an all time low, in terms of speed.

To the tens of thousands who are anxiously awaiting the hearing and determination of the elections petition filed by the PPP, and who pose all sorts of questions to me wherever I go,  I say, sadly, this is the system under which I function.

 

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