Letter: Did Justice Sandil Kissoon turn Industrial Relations upside down?

Justice Sandil Kissoon

Dear Editor,

High Court Justice Sandil Kissoon has been applauded by the PNCR party for declaring that the Guyana Teachers Union’s (GTU’s) strike was legal, and for also declaring that the PPPC Government’s action — to cease the deduction of union dues on behalf of GTU, as well as to stop payment of wages for those strike days — was also illegal. The PNCR readily agreed with the judge that the Government’s decision was “arbitrary, unilateral, and discriminatory”.

What is fascinating about the PNCR’s statement is that they claim they are on the side of teachers in their quest for respect, salary increases, and other benefits. Really?! The PNCR’s claim is tenuous; they could hardly produce evidence that they support teachers. All the major benefits (salary adjustments, duty-free allowances, housing, GOAL scholarships, etc.) that teachers enjoy were granted by the PPC Government.

If we think the PNCR’s comments on the case were gratuitous, how would we rate the ruling of Justice Sandil Kissoon? Unlike the PNCR, the Guyana Government has been critical of Justice Kissoon’s ruling, which it describes as “shocking, unprecedented, and which constitutes judicial overreach.” The Government contends further that the ruling encroaches on the doctrine of “separation of powers.”

The Ministry of Education (MoE) had submitted evidence that the negotiations between the GTU and MoE were ongoing, and that the grievance procedure was never exhausted to reach the stage of strike action, in accordance with the existing Collective Labour Agreement (CLA). Despite the ongoing negotiations, where over 30 items of grievance had already been determined, the GTU abandoned the CLA process. The logical question is: “On what basis did the judge find the strike legal?”

What is fundamentally at stake here is how the judge views his role in the administration of justice. Judges must adhere to the doctrine of “judicial restraint:” They must interpret conflicts in laws based on the intent of legislators as well as the public’s interest. But they must not legislate from the Bench: they must not make laws and violate one of the major pillars of democracy called the “separation of powers.”

When judges make law, they engage in judicial activism. They arrogate to themselves the power reserved to the Executive and the Legislature. The judicial system could not allow an unelected individual to have greater power than the people’s representatives.
Judges must be held in check: this is what judicial restraint is about. And judicial restraint necessitates that decisions must take into consideration the public interest. In other words, judges must evaluate the likely impact of their rulings on the wider society.

It seems that Justice Sandil Kissoon did not evaluate the public interest (the likely massive economic and social upheavals his decision would entail), went beyond judicial restraint, and engaged in judicial activism by grabbing executive power. Any union in the private and public sector could strike, and employers must pay them for strike days. Also, employers must continue their agency function to collect union dues! These are decisions to be made by the executive, and not by the court.

What is startling is that the judge is aware of the malfeasance of the GTU, which failed to submit annual financial returns to the Auditor General since 1989, and annual reports to the Deeds and Commercial Registries Authority since 2005. Also, the GTU failed to submit minutes of meetings between the MoE and the GTU that the judge had requested. It was the MoE that submitted their copies of the minutes. Despite these and other glaring flaws, the judge ascribed validity to their claim and rejected the Government’s case.

This is reminiscent of this judge’s ruling in Exxon’s unlimited insurance case. He ordered the EPA to secure unlimited insurance to cover oil spills and other environmental disasters within 30 days. Why would a judge order the impossible? Where in this world is there such a thing as unlimited insurance? If that judge had his way, Guyana’s economy would have collapsed, and the society’s social fabric crumbled. This judge has made two rulings that, if activated, would ruin Guyana’s economic and social life. Why would any country allow an unelected person to wield such unbridled power?

The Government has announced its intention to appeal Justice Sandil Kissoon’s ruling to the Court of Appeal, and even to the Caribbean Court of Justice. We eagerly await the outcome.

Dr Tara Singh