Since dictatorships/autocracies must find a way to directly influence/control the judicial process in a liberal democratic environment, I cracked up when some time ago a letter in one of Guyana’s dailies suggested that Guyanese need not worry too much about the impartiality of the judicial system since the Caribbean Court of Justice (CCJ) exists as the final court of appeal!
President Forbes Burnham was an autocratic but extremely talented lawyer/ politician who was involved in election manipulations, and that is why, contrary to the CCJ’s ruling during the 2020 no-confidence debacle, I still do not believe that he would have given the CCJ jurisdiction over important elections processes in Guyana. The People’s Progressive Party (PPP) was ecstatic when the court of Hon. Justice Adrian Saunders asserted jurisdiction, but since the PPP itself had begun to toy with elections manipulation, it also had to play with the CCJ.
Since the 1950s, ethnic political disturbances in Guyana have led to the loss of hundreds of lives, much property and persistent underdevelopment. In the late 1990s, these disturbances resulted in the Caribbean Community-brokered Herdmanston Accord and the St. Lucia Statement that led to wide-ranging constitutional reform that the parties thought would put an end to the persistent turmoil.
However, the constitutional reformers on all sides totally misdiagnosed the problem and as a result the 2001 reforms institutionalised a host of new rights, sectoral, management and other commissions and committees but left them all in the majoritarian winner-takes-all political framework that is totally unsuitable for a deeply ethnically divided society such as Guyana. So, not long after the new Constitution was adopted the disturbances returned with dire consequences and estimates of the loss of life ranging from 400 to over 1000 persons.
The PPP, still relatively safe in its ethic majority, in its 2003 document ‘Towards Greater Inclusive Governance in Guyana’ lauded the establishment of the various commissions and committees in the Constitution (that today appear to be more or less defunct) claiming that, ‘These and other reforms make the Guyana Constitution the most advanced in terms of inclusiveness and Opposition involvement in governance in the Caribbean region and certainly one of the most advanced in the world!’
It should not take much intelligence to recognise that constitutions are not good in themselves: they are expected to bring peace, good governance and development and thus must be properly aligned with their context. The present arrangement has signally failed because it is unsuited to the multiethnic/largely bicommunal context of Guyana.
And with the exception of the then President of the Caribbean Court of Justice, Hon. Justice Adrian Saunders, I am still not aware of the head of any reputable organisation parroting the PPP nonsense about Guyana having ‘one of the most advanced constitutions in the region’. The opposite view was more prevalent and so at the time I felt it necessary to make the following comment.
‘For 17 years of its 21 years of existence clauses in this ‘most advanced’ constitution have prevented Guyana from having a confirmed Chancellor and Chief Justice thus undermining the separation of powers and facilitating the delivery of tainted justice to the Guyanese people.
The good Justice spoke about the ‘dynamic, responsive and innovative’ nature of the present system without a word of concern that, as recommended by the Saunders’ Court, the justice system is still unable to complete elections petitions and thus provide timely, certain and stable governance to the Guyanese people. Even more depressing is the thought that the political struggle in Guyana for constitutional and other reforms may well reach the CCJ! (Justice Saunders and the PPP’s mantr. VV: 01/06/2022).
Just as the PPP is feeling more comfortable in its autocracy, the CCJ’s new President, Justice Winston Anderson who, as reported is a self-professed dictator, is being accused by no less than 5 of his 6 fellow justices of all manner of serious infractions. I wish to make only three points.
Firstly, the chaotic public way this quarrel has developed questions the appropriateness of the institutional arrangements that are in place to amicably put such matters to rest.
Secondly, among other things, the very existence of dissenting legal opinions can on occasion be useful brakes upon majority excesses and should not be discouraged.
Finally, apparently there is to be an investigation, and I am waiting with bated breath to hear what was improper about the timing and manner of the presentation of the court’s final decision in the Azruddin Mohamed extradition case.
In his ‘The Spirit of Laws’ Charles de Baron Montesquieu (1689-1755) recommended the universalisation of the separation of powers to safeguard democratic governance after studying the British system of government. He obviously overstated the position in Britain, for as late as 1976, Lord Hailsham was still pejoratively referring to the British government as an elected dictatorship in which the cabinet, led by the prime minister, had almost total control.
Nevertheless, it is now universally accepted that democracy will not flourish in the absence of the separation of powers. It may be useful for Guyanese to also note that at the time Montesquieu was writing, British politics was very corrupt and he also believed that the division of governmental powers was an important part of the ‘answer to the conundrum: how do you keep the bastards honest, when everybody in power is a bastard?’
But constitutionally, the separation of powers in Guyana is a mere theoretical contraption: it does not in fact exist as the constitutional/legal arrangements allow the leader of the ruling party near absolute control over the three arms of government (MV Barima and the politics of fear. VV: 02/08/2026).
As noted above, for more than two decades, Guyana has been without a substantive Chancellor of the Judiciary and Chief Justice because efforts were made to appear super democratic in an inappropriate context. In a democracy, it is universally considered dangerous for the chief legal officials to be in acting positions for lengthy periods.
I understand that since, according to the present Constitution, the President and Leader of the Opposition must ‘agree’ on the persons to be Chancellor and Chief Justice, Presidents of the CCJ have a duty to repeatedly prompt them to get their act together and have both positions firmly established.
But the non-confirmation stalemate in Guyana is a result of the PPP determination to control the judiciary, and Justice Anderson’s intervention – which he has now admitted was misguided – helped to cajole the previous incumbent to voluntarily relinquish her position as Chancellor and allow the regime to make its own acting appointments. This does nothing to facilitate the separation of powers to which the CCJ must be committed.
Indeed, it was a step too far. For, if anything, Justice Anderson’s intervention has enhanced the power of the ruling autocracy over the justice system and resultantly over the entire society!
