Our Judiciary4896 10 May, 2012
Mr. B. Williams: If it pleases you Mr. Speaker, I rise to support this motion which is well founded and shall hereafter be illustrated. It is apposite to note, as I rise to so do, that I am really now basking in the gaze of two eminent senior counsels who were Presidents of this country. I think it is apposite that we are discussing independence of the courts and judiciary at this time in Guyana. I am not going to dwell that much on the intervention by the Hon. Member the Minister of Finance, Dr. Ashni Singh, safe to say this: to say that this issue should abide resolution in the Constitution Reform Committee (CRC) of Parliament has to be a misnomer or a joke. I was on the CRC in the Eight Parliament, the Ninth Parliament and I am presently on the CRC in the Tenth Parliament. In the Eight Parliament there was one meeting. The Hon. Attorney General at all material times in the last two Parliaments I mentioned were the chairman for that committee. There was one meeting to vote for the chairman of that committee and no other business was done in the Eighth or Ninth Parliament in relation to constitution reform. So I am not going to be delayed by the interventions by the Hon. Member.
Ms. Teixeira: Mr. Speaker, maybe we wish to be reminded that there was a point of elucidation, because he is talking about the Eighth and Ninth Parliament. But in this the Tenth Parliament we are reminded all the time of a new dispensation. The Constitution Reform Committee is headed by no less an eminent person as Mr. Grainger… [Cross talking]… I expect your performance to be better.
Mr. Speaker: Okay Ms. Teixeira, that is not a Point of Order. The point was made five minutes ago by Dr. Singh. Proceed Mr. Williams.
Mr. B. Williams: Mr. Speaker, this motion seeks a solution in the 21st Century which jurisprudential basis has its genesis in the theories of the separation of powers espoused in the 17th century by John Locke, an Englishman, and the French philosopher Montesquieu. Locke championed a constitutionally limited sovereign and a three-fold division of government power in order that a sovereign shall not abuse his power. The in-depth reading can be found in the ‘Second Treatise On Civil Government which was published in 1690 by John Locke. Montesquieue posited that the guarantee against abuse lies in establishing neutral checks between the legislative, executive, and judicial functions. He developed this theory also in his work De l’Esprit des Lois in 1748. In Dias on ‘Jurisprudence’, Fourth Edition, 1976, Butterworths at page 98 – I am doing all of this so that the Hon. Members could source the information – the learned author states thus and I quote:
“Montesquieu’s doctrine is carried furthest in the United States of America where the separation is guaranteed by a constitution guarded by the courts. The federal legislative power is vested in the congress, the federal executive power in the President and his Cabinet, and the federal judicial power in the supreme court.”
This is the crux of this motion before this court, the struggle to maintain the independence of the judiciary of Guyana, and it is a laudable cause. In former British colonies, including Guyana, written constitutions were introduced based on the Westminster model and were expressed to be the supreme law of the land. According to Madam Margaret DeMerieux in her work ‘Fundamental Rights in Commonwealth Caribbean Constitutions’. [Mr. Nandlall: She run mad, right.]
Mr. Speaker: Insane. Mr. Nandlall you cannot use those words here.
Mr. B. Williams: That always happens with brilliant people.
Mr. Nandlall: So you agree that she run mad.
Mr. B. Williams: You are not yet there. You are quite sane.
Mr. Speaker: You go ahead Mr. Williams.
Mr. B. Williams: I quote:
“Set clear limits on the powers of the several arms of the state, and arising therefrom, creates a power in the courts to see that the institutions established in the documents function within the prescribed boundaries.
Sir Fred Phillips in his book Commonwealth Caribbean Constitution on pages 18 and 19 proferred this:
“The principle of the separation of powers deriving from our new constitutions has since 1960 been articulated in leading cases designed to highlight the fact that the executive and the legislative should not trench upon the preserves of the judiciary.”
This is what we are trying to do in this motion, to maintain the purity of the independence of the judiciary of this country. Alas, let us see how it is going.
In Hines the legislative purported to create the gun court and surmised to include and give the same jurisdiction as the Supreme Court in Jamaica, which was already established by the Constitution, Of course that was a collision and was held to be illegal and unlawful.
In Guyana’s present Constitution Article 123 provides for the establishment of the supreme court of judicature consisting of a court of appeal and a high court with such powers as conferred on them by the Constitution. Pursuant to Article 123 of the Constitution, the Caribbean Court of Justice (CCJ) was made our final court of appeal. The independence of the judiciary is provided for in Article 122A of the Constitution, and it is this article which forms the core of this motion. I am not sure why the Hon Minister of Finance kept insisting that it ought to be Article 222A. Article 122A(1) of the Constitution says this:
“All courts and all persons presiding over the courts shall exercise their functions independently of the control and direction of any other person or authority, and shall be free and independent from political, executive, and any other form of direction and control.
You cannot hear it clearer than that. That is what the basis of this motion is, Article 122A. Article 122A(2) says this:
“Subject to the provisions of Article 199 and 201 all courts shall be administratively autonomous and shall be funded by a direct charge upon the Consolidated Fund. Such courts shall operate in accordance with the principles of sound financial and administrative management.”
Mr. Speaker, the appointments of the Chancellor and Chief Justice are provided for in Article 127 of the Constitution. It provides thus:
“The Chancellor and the Chief Justice shall each be appointed by the president, acting after obtaining the agreement of the Leader of the Opposition.”
All these provisions seek to get to that reality, that dream, that aspiration, of insulating our judges from the reaches, from the grip, of the executive.
I continue, Article 197 of the Constitution provides for the security of tenure of judges and the manner of their removal. Article 198 provides for the composition of the Judicial Service Commission, and Article 199(1) vests the jurisdiction to appoint, remove, and discipline judges in that Commission. The independence of the Judicial Service Commission is provided for in Article 226(1) and it provides as follows:
“Save as otherwise provided in this Constitution, in the exercise of its functions under this Constitution, a Commission shall not be subject to the direction or control of any other person or authority.”
Not only the judiciary but the Judicial Service Commission, which has a remit to appoint judges, has to be free of political control and executive control.
Article 226 (7) clarifies it and defines commission to include the Judicial Service Commission, Public Service Commission, Teaching Service Commission, or Police Service Commission. Those constitutional commission are also expressed to be independent and beyond the control of the executive or other influences.
Finally, Article 222A provides an overarching clause on financial autonomy.
“In order to assure the independence of the entities listed in the Third Schedule…
[Mr. Nandlall: That is higher than article 122; overarching.] It cannot be higher:
“(a) The expenditure of each of the entities shall be financed as a direct charge on the Consolidated Fund…”
… as was said in Article122A(2).
“(b) Each entity shall manage its subvention in such manner as it deems fit…
The judiciary is listed in the Third Schedule to our Constitution. The foregoing legal architecture is designed by its framers to guarantee the independence of our judiciary and to insulate it from the executive and legislative branches of the state.
I respectfully refer you, Sir, and the Members of this Hon. House, to the author Dias who at pages 128 and 129 of his work ‘Jurisprudence’ enters this caveat. I quote:
“For there could be no protection against abuse of power, even when safeguards are enshrined in a written constitution, if the judges who have to interpret these whenever the government is challenged are only puppets of the government.”
I am respectfully contending that to ensure that our judges do not become, and I quote, “puppets of the government”, it is imperative that we excoriate from the aforementioned architecture, the rotten plank of the budget agency. The budget agency is a device introduced by the Fiscal Management and Accountability Act of 2003 to remove the financial independence of the courts/judiciary and transfer the control over their finances to the executive. The time worn aphorism immediately comes to mind, “who pays the piper calls the tune”.
In that Fiscal Management and Accountability Act entities listed in the schedule thereto are budget agencies. Section 2 defines budget agencies to mean:
“a public entity for which one or more appropriations are made and which is named in the schedule.”
The Supreme Court is listed in that schedule. The time has come for its removal, in order to restore the independence of the judiciary.
The purported creation of the budget agencies is inconsistent with the aforementioned constitutional provisions guaranteeing the independence of the judiciary.
Article 8 of the Constitution provides in this connection, and I quote:
“This Constitution is the supreme law of Guyana, and if any other law is inconsistent with it, that other law shall, to the extent of the inconsistency, be void.”
The budget agency has therefore always been an unlawful invention.
The following are two examples of jurisdictions which have devised approaches for securing the independence of their judiciaries. I refer to the Judicial Salaries Commission of the State of New York on a publication of that Commission dated 26th August, 2011; very recent.
“A state commission decided on Friday to increase of more than 1,200 new York state judges by 27% over three years ending a decade of battles in Albany and the courts giving judges their first raise in 12 years.”
This is what is so important:
“The seven-member commission appointed by the leaders of all three branches of government…”
That is remarkable, the extent that they have gone to ensure the independence of and to insulate the judiciary from the executive.
[Mr. Hinds: All three branches] All three branches, not the executive. All three branches had to be there. It is not like here. Unlike Guyana as the Prime Minister is reminding me now, some years ago when our judges wanted an increase they had to go virtually cap in hand to the President. There as big picture in the newspapers, judges going to beg for increase in salaries. They liked that and published the picture. That must never happen again in this country. That was called, until the last elections last year, the dictatorship of the executive.
Some years ago when our judges wanted an increase they had to go virtually cap in hand to the President, big picture in the newspapers, Judges going to beg for increase in salaries. They liked that, they published the picture. That must never happen again in this country. That was what you call, until the last elections last year, the dictatorship of the executive. That was what was happening in Guyana for the last 19-20 years.
The seven member commission appointed by the three leaders of all three branches of the Government had expected to grant a raise. Still the amount that was settled on was considered very malice and some judges even expressed their bitter disappointment. But this is what they said in the 80th Report, at section 174:
“Further we continue to hold that judges occupy a unique position in our society and that paid arrangements for offices in the Judicial and Legal Service should continue to be fixed within the structure applicable to that service.”
So in other words to determine what the judges got, you did not have to go to the Governor alone, you had an independent commission. Even when the commission fixed the remuneration it had to go back into the judicial structure for them to disburse it and spend their own money. That is exactly what it meant and that is what we need here in Guyana. An independent commission to fix the wages and the salaries of the judges and their benefits... [Mr. Nandall: That is not what the motion called for.] That is what it calls for; it calls for independence. [Mr. Nandlall: Which paragraph?] Just listen and you will learn.
I will also go close now; I will go close to home – Trinidad and Tobago. In Trinidad and Tobago there is a Salaries Review Commission, established by section 140 of the Trinidad and Tobago Constitution and it is structured in this way, it has a Chairman and four members appointed by the President, after consultation with the Prime Minister and Leader of the Opposition. Before the Hon. Members on that side of the House gets excited, the President in Trinidad and Tobago is not like a President under our Constitution. They do not have an executive President. They have a titular or ceremonial President and you realise that it is everyone involved in the appointment of the Commission, the Government, the Opposition and the titular President. The remit of this commission in Trinidad is to review from time to time with the approval of the President, the salaries and other terms and conditions of service of the judiciary. All these practices are best practices around the world – close at home. Yet this Government has never made... what has this Government done? What the Government has done is tell us to follow the best practices. They decide, create budget agencies, create these little fiefdoms and get the GECOM, who is supposed to also be independent, the Auditor General and the rest until recently, to have to go cap in hand to these people. And so they control the lever. Look at our courts, no amenities, no proper remuneration – look at it. That is what we are arguing. Not even appointing judges. The work load of our judges alone, I am worry for the few judges that are there and this thing about part-time judges is a no-no. That is more control. You must have the political will to appoint judges with security of tenure. That is what the Constitution contemplates. Not a judge that is at your whim and fancy that you can dismiss and do not renew their contract as has happened. You do not pay them what they are supposed to get, we do not want that kind of thing in Guyana.
We are saying, the new dispensation that exists in this new Parliament is one to correct all the wrongs and it is to institute good Governance in Guyana, once again. We want to maintain the independence of the judiciary and not allow the Government to ride ramshod over it or over Parliament also, but that is another matter.
So the motion as I said, is well foundation, the relevant article upon which it is premise is quite correct and apposite. Therefore, I have no difficulty whatsoever in agreeing with the reserve clause, that to collect this anomaly all we simply need to do is to edit out, so to speak or scratch out if you wish from the schedule in the in the Fiscal Management and Accountability Act, the reference to the Supreme Court. That is all we need to do, do not worry about their red herrings and smoke screens about Constitutional motion, we do not need all those things. Therefore, I will advise the Members on the other side to sign on to this motion and support the motion and you know you do not have to have the two-thirds. One vote is all that it takes to get this done. Thank you, Mr. Speaker. [Applause]
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