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Democracy in Guyana did not start in 2020, Guyana has been a democracy for as long I can remember. Based on a Stabroek News editorial published on October 24, 2021, titled ‘Politics and the Courts’, as well as was widely reported in the other sections of the media on the University of the West Indies (UWI) Cave Hill professor – Political scientist Professor Cynthia Barrow-Giles and law lecturer Dr Ronnie Yearwood analysis of the “judicialization of politics” in Guyana and the Commonwealth Caribbean, as expressed in a recent virtual forum. Part of the analysis focused on the whether or not the courts in Guyana were “truly as independent as they really ought to be and therefore what can be done about that?”.
Based on the Stabroek News Editorial, ‘Prof. Barrow-Giles in response to a question described some of the judgments made by the local courts as “questionable”. She said that one of the most important questions was whether or not the courts in Guyana were “truly as independent as they really ought to be and therefore what can be done about that”. Whether the decisions in turn were a reflection of the lack of independence of the courts. Her query was apparently based on “some of the judgments” of the Appeal Court, which were “highly questionable’, not the High Court rulings which the CCJ had affirmed’ based on a report’. It is also important to note that much of the analysis was focused on events around Guyana’s 2020 elections
In my view the two professor(s) analysis of the ‘Judicialization of politics’ in Guyana was too thin for them to have arrive at such strong (perhaps radical) conclusions that the courts in Guyana were not as independent as they ought to be. I have an opposite view which is that Guyana’s judiciary is highly independent, and the professor(s) conclusions were misplaced. These conclusions on Guyana’s Judiciary, particularly the Appeal Court, even from academics, were inconclusive. It should be noted though, that the judiciary is certainly not perfect.
I wish to list a number of instances over the past ten years where the Guyanese Judiciary performed with trememdous independence. In July 2010, the then President Bharrat Jagdeo filed a lawsuit against the Kaietuer News Columnist Frederick Kissoon for an article that was published in that newspaper on June 28, 2010. In a Kaieteur News article on July 14, 2010, it was reported ‘in an ex-parte application for the interim injunction, the President claimed that the article suggests that he is a racist and that “by extension, the State and Government of Guyana, practise racism as an ideology, dogma, philosophy, and policy…”’
The article further stated, ‘The Head of State also said that he understood the article to mean he and by extension, “the State and Government of Guyana, discriminate against Afro-Guyanese on the basis of their race and ethnicity.” Additionally, the President states that Kissoon inferred that the State and Government of Guyana, have an institutionalized policy to degrade, de-humanize and pulverize Guyanese of African descent. Also, “…that I [the President], and, by extension, the State and Government of Guyana, routinely act in contravention of Article 149 of the Constitution which guarantees to all citizens of this country protection from racial discrimination as a fundamental right and freedom…”’ What is important to note, is that in 2010, Bharrat Jagdeo, now Vice President, was the President of Guyana, he was the Head of the Executive branch of the Government and held immense power, however, he had such faith in the Judiciary, that he sought redress in the courts.
In another Kaieteur News article on May 25, 2015, titled ‘BREAKING NEWS: Former President shows up in court to avoid Arrest Warrant – Magistrate orders Jagdeo not to leave Guyana without permission’. The article stated, ‘Former President Bharrat Jagdeo was today barred from leaving Guyana without the court’s permission during his trial for a private criminal matter brought against him…The order was handed down by Magistrate Charlyn Artiga when Jagdeo belatedly appeared before her at the Whim Magistrate’s Court in Berbice’.
It further stated ‘Jagdeo, who was a no show when the matter was first called a few weeks ago, turned up today in time to avoid an arrest warrant being issued for him’. The charge was that Jagdeo had uttered words causing racial or ethnic hatred, contrary to Section 139 D (1) (a) of the Representation of the People’s Act, Chapter 1:03 during a speech at Babu Jaan, Corentyne. The matter was filed in April 2015. In another Kaieteur News article on December 13, 2015, it was reported that Supreme Court Judge Navindra Singh ruled that ‘the Magistrate court does not have jurisdiction
since the facts submitted in the ‘case of racial incitement that Attorney–at-Law [and Activist] Christopher Ram, brought against former President, Bharrat Jagdeo are insufficient to constitute the offence for which Jagdeo was charged’.
In another case reported in a Demerara Waves article on August 17, 2018, it was stated that ‘Attorney-at-Law, Anil Nandlall wants the High Court to order the imprisonment of Attorney General and Minister of Legal Affairs, Basil Williams for failing to comply with Chief Justice, Roxane George-Wiltshire’s order that he must activate the Judicial Review Act’. The article further stated ‘Nandlall is asking the High Court to order that Williams “be committed to Georgetown Prisons, Camp Street, Georgetown … for failing to bring the Judicial Review Act Chapter 8:06, into force on or before the 31st day of July 2018, as ordered by the Honourable Madam Chief Justice Roxane George on the 28th day of May 2018”’. In another Kaieteur News article on September 15, 2018, it was reported that ‘The contempt proceedings filed against Attorney General Basil Williams have been withdrawn. The decision to withdraw the proceeding was made … after the case came up at the High Court before Justice Navindra Singh’.
In a Stabroek News article on February 2, 2019, it was reported ‘In the event that the National Assembly is reconvened to consider extending the deadline for the holding of general elections, those members who have dual citizenship will have to be replaced in light of the recent ruling by Chief Justice (ag) Roxane George-Wiltshire”. The article further stated that ‘Chief Justice George-Wiltshire held that former government Member of Parliament (MP) Charrandass Persaud was “not qualified” for election to the National Assembly by virtue of his own acts in acknowledging allegiance and adherence to a foreign power to the sovereign state of Canada, in contravention of Article 155 (1) (a)’
Another Stabroek News article on April 2, 2019, reported ‘President David Granger has received and accepted the resignation of all coalition Members of Parliament (MPs) who are holders of dual citizenship…These members will not be returning to Parliament…when it reconvenes on April 11, 2019”. What is important to note here is that these Members of Parliament resigned based on the order of the acting Chief Justice; these were former Minister of State Joseph Harmon now Opposition Leader, former Minister of Foreign Affairs Carl Greenidge, former Minister of Public Service Dr Rupert Roopnaraine, and former Minister of Business Dominic Gaskin.
In a Stabroek News article on June 25, 2019, it was reported that Justice Priya Sewnarine-Beharry ruled that ‘Finance Minister Winston Jordan is to be jailed for 21 days if he fails to comply with a previously issued court order to pay Trinidad construction company Dipcon the more than US$2 million owed to it by the government for road construction works.
Then is a Kaieteur News article on July 6, 2019, it was reported ‘Minister of Finance, Winston Jordan, could be sent to jail … pursuant to a contempt order issued by Justice Priya Sewnarine-Beharry if he fails to honour a court judgment’. In a subsequent article it was reported that ‘Full Court comprising Justices Simone Morris-Ramlall and Diane Insanally, refused to grant a stay of Justice Sewnarine-Beharry’s order during a hearing yesterday. The former Attorney General Basil Williams who is representing former Minister Jordan issued the Full Court with an oral notice of appeal’.
Later in a Stabroek News article on July 8, 2019, it was reported ‘President David Granger has intervened to prevent the jailing of Finance Minister Winston Jordan over the government’s failure to pay the more than US$2 million awarded by a court to Trinidad construction company Dipcon for road construction works. In a Kaieteur News article on June 17, 2021, it was reported that ‘Justice Sandra Kurtzious has reaffirmed her order to grant an award to former Junior Minister of Communities, Annette Ferguson, in the case where she sued Vice President, Bharrat Jagdeo, for libel. Delivering her ruling via Zoom yesterday, Justice Kurtzious upheld the default judgment on the basis that Jagdeo failed to provide any substantiated material to support his reason for failing to file a defence to the defamation claims’.
In a Guyana Chronicle article on October 15, 2021, it was reported that the ‘Demerara Full Court on Thursday reserved its judgment in the challenge filed by Vice-President Dr. Bharrat Jagdeo against the decision of High Court filed by former Minister of Communities Annette Ferguson’.
Yet in another matter involving members of the Executive and the Legislature, it was reported in a Guyana Chronicle article on December 11, 2020, ‘Chief Justice also granted another declaration stating that [the Hon. Oneidge] Walrond [Minister of Tourism, Industry and Commerce], was not a lawful member of the 12th Parliament of Guyana when she was sworn in on September 1, 2020’.
In November 2020, Opposition, A Partnership for National Unity + Alliance For Change (APNU+AFC) Coalition had approached the High Court seeking a declaration to have Walrond moved from her seat in the National Assembly, which they claimed she is illegally occupying.
These were ‘big’ moments for Guyana’s judiciary, and they must not be devalued. In December 2019, I recall being a part of a discussion with lawyers and the conversation was focused the view that the Executive Branch and Guyanese politicians were ‘afraid’ of the Judges and that the judiciary was evolving as an admirably independent body. Based on the ten-year rapid analysis above of cases which were brought before the Magistrates Court, High Court and Appeal Court of Guyana involving the members of the executive, opposition, legislature, Presidents and Ministers of Government; in my view, Guyana’s Judiciary is functioning with a tremendously degree of independence. Guyanese judges at the High Court and Court of Appeal have adjudicated admirably in these instances, among others.
Another point that came up in our discussions was whether the fact that there are more female Judges in the High Court, and the Court of Appeal was one of the reasons for the greater level independence being displayed? Whether the fact the both the acting Chief Justice and Chancellor are females was a contributory factor? In all cases above, most of the judges were females, as well as the magistrate. Perhaps these are areas which the UWI professor(s) might be interested in analysing further and which could have a greater value to the development of a more inclusive and cohesive Guyanese society.
Another point to note is that the Judiciary is the third arm of Government, and at a time when the executive and legislature are experiencing, perhaps one of the most challenging periods, particularly since December 2018, an additional burden has been placed on the Judiciary to adjudicate over matters of a highly political nature. It is the Judiciary, led by the Honourable Acting Chancellor (ag) and the Acting Chief Justice and judges, who, to a large extent, is holding the Guyanese society together, by showing judicial leadership and strength. Many indeed sitting in their ivory towers would never understand the depth of gratitude which the Guyanese people have towards the Judges, for their professional maturity and astuteness.
Finally, I view this as an attack not only on our Judiciary but on our professional women in the Judiciary. President Ifraan Ali needs to consult with the Leader of the Opposition and confirm our two distinguished female jurists – Acting Chancellor and Acting Chief Justice with immediate effect! The current government must be mindful that it is not rolling back its own gains from its hard work on justice administration reforms which resulted in the level of the independence shown above. The previous APNU+AFC Government benefited from the outcomes of the PPP/C government’s inputs on these reforms, but it seems like the government is willing to roll back this progress. However, we will protect our judiciary, our judges, and magistrates against disrespect while we encourage and support meaningful reforms in the judiciary.
Audreyanna Thomas, Rule of Law Advisor/Advocate