Presidential lip service to Judicial Independence

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(Following is an opinion piece written by PPP  Member of Parliament and former Attorney General Mohabir Anil Nandlall)

No one can sensibly dispute that an independent and effective judiciary is not only the sine qua non of any democracy, but it is the very foundation upon which the edifice of civil society rests. “If the judiciary is to perform its functions and duties effectively and remain true to the spirit with which they are sacredly entrusted to it, the dignity and the authority of the courts have to be respected and protected at all costs otherwise, the very cornerstone of our Constitutional scheme will give way, and with it will disappear the rule of law and the civilized life in the society.” (Justice Sawant: Re Vinay Chandra Mishra (1995) 2 SCC page 584). Although the above statement was uttered by a Judge of the Indian Supreme Court, that it rings true of the Guyanese Judiciary and indeed judicial systems everywhere, there can be no doubt.

No dispassionate mind can credibly justify the Attorney General’s contumacious outburst in open court before High Court Judge Mr. Franklin Holder, a few weeks ago. As an eye witness to the incident, I say that the judge’s recitation, in a letter to the Acting Chancellor, of what transpired on that fateful day, does not only coincide with my interpretation of the events, but the adjectives used by the learned judge to describe the Attorney General’s conduct, graphically but accurately captures the tone, mood and electricity of the atmosphere, at the time. I could not have proffered a better recollection. In that letter the Judge indicated that he made a finding that the Attorney General committed contempt in the face of the court. The Judge demanded an apology from the Attorney General.  The Judge’s letter was published by the media, verbatim.

On the 8th of May 2017, when the case resumed, the Judge not only reiterated his finding of contempt but indicated that the Attorney General’s subsequent public statements aggravated the contempt. The Judge was emphatic that he has not lost the power to cite the Attorney General for contempt. Why he did not do so, nor has yet done so, is a disappointment to most law abiding citizens.

It is against this backdrop that the President’s statements made on the 17th of May 2017, at the swearing-in ceremony of two appellate court Judges, must have shocked the conscience of the right thinking Guyanese public. The President is quoted in the Press, as saying, “I cannot see that there was anything which could have warranted his being cited for contempt of court. As I said, his behavior was not being contemptuous so in that regard there cannot be any justifiable call for an apology because his behavior was not in contempt of court”.

That these sentiments, emanating from the Head of State, and a highly decorated former army general is abominable on so many dimensions, may yet be an understatement. The law, separation of powers, and respect for the majesty of the court aside, just imagine for one moment, a subordinate army officer behaving as the Attorney General did, to Brigadier David Granger, thirty-five years ago, at Camp Ayangana, what would have been his fate.

However, on a more serious note. Under the doctrine of separation of powers, a fundamental pillar of our Constitution, the Judiciary is resided with the sole and exclusive responsibility, of being the final arbiter of legal issues within our system of governance. Whether a person is guilty of contempt of court or not, is a legal question to be determined only by the Judiciary. Justice Holder has already pronounced that the Attorney General has committed contempt in the face of the court. This is a conclusive pronouncement on the matter by the lawful constitutional authority. If it is wrong, the Judiciary, itself, offers a procedure to rectify wrong judicial decisions. The raison d’etre of the separation of power principle is to insulate the legislature and the executive from trespassing upon the functional domain of the judiciary and vice versa. The President’s statements have obviously disregarded this sacrosanct constitutional doctrine.

To compound the travesty, the President has publicly endorsed the Attorney General’s absolute and contemptuous disrespect for the Judiciary, which constitutes an even greater slap to the dignity of this institution, whose smooth functioning depends so heavily upon public trust and confidence. This is precisely what Justice Sawant warned against in his observations to which reference is made above. If an ordinary person were to act, when appearing before a judicial officer, or before any high authority, in a manner similar to the Attorney General, the President is now bereft of any standing, or credibility, to criticize such conduct.

Unfortunately, it is not the first time that the President is publicly quoted as making final pronouncements on legal issues, thereby lending to a usurpation of judicial functions. On or about the 29th of December 2016, a Public Statement, emanating from the Ministry of the Presidency, quoted the President as pronouncing that the 99 year old lease, issued to the Cheddi Jagan Research Institute Inc, in respect of Red House, was invalid, and ordered that the tenants be evicted therefrom within 48 hours. As invalid as anyone may perceive a lease to be, it is common ground that its validity, or lack thereof, and whether or not tenants in a demised premises should or should not be ejected, are purely complex legal issues to be conclusively and lawfully determined by the Judiciary and no other authority, in accordance with the doctrine of separation of powers. Just imagine the social chaos and disorder, which would erupt in this land, if every landlord arrogates upon himself the power and authority to determine that a tenancy is invalid and takes steps to eject his tenants without any resort to the court.

There is still yet another dimension. It is judicial independence. At the very ceremony, the President assured the Nation that there is no political interference in the Judiciary. This assurance must ring hollow in the face of the President’s inordinate delay in acting upon the advice of the Judicial Service Commission, as well as, his manipulation of that advice by not swearing-in the advised persons as Judges. This issue is exacerbated by his stamp of imprimatur to the Attorney General’s grossly insolent and irreverent attack upon a High Court Judge. Is the President not, subliminally, signaling to the Judiciary that his Ministers or the Government, itself, can act most egregiously, but yet, enjoy Presidential support, if not approval?

In my view, this strikes at the heart of judicial independence, since Judges may now have to contemplate a Presidential reaction to their rulings against the Attorney General and the Government and apprehend the consequences, which may flow therefrom. In Bradley -v- Fisher 80 US 335, Justice Field of the US Supreme Court enunciated the principles thus:

“For it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequence to himself. Liability to answer to everyone who might feel himself aggrieved by the action of the judge, would be inconsistent with the possession of this freedom and would destroy that independence without which no judiciary can be either respectable or useful.”

It is difficult to decipher whether the President makes these statements knowing of their legal ramifications or he just makes them innocently. Either way, it is the duty of his Attorney General to advise him properly on the law. But then again, it is clear that the current incumbent has a demonstrable incapacity to do so. One can only hope that a compliment of five highly decorated advisors would bring reprieve to this very crucial constitutional tragedy.

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