EVEN as he called for a review of the separation of powers between the Judiciary and the Executive, as contemplated by the Guyana Constitution, Senior Counsel Miles Fitzpatrick has charged local lawyers to help guard and strengthen the independence of the local judicial system.In an address made at last week’s Anniversary Dinner of the Guyana Bar Association and the Guyana Women Lawyers Association, at which Prime Minister Moses Nagamootoo, Chief Justice Ian Chang and Professor Justice Pollard were among the officials present, Fitzpatrick said that in America, judges appointed to the Supreme Court are nominated by the President, but this decision is thoroughly examined by a Congress that the President invariably does not control.

“In Guyana, the reality is that judges are selected by the Executive or persons appointed by the Executive. The separation of powers is, by that fact alone, compromised,” he argued.

In underscoring the importance of an independent judicial system, Fitzpatrick said, “The separation of powers mandates an independent judiciary; independent from the Executive.”

JUDICIAL INDEPENDENCE
He argued that judicial independence can be achieved with the help of the Bar. He noted that securing the independence of the Judiciary is the responsibility of the entire legal fraternity, and not just the judges. “But our constitution hinders, rather than helps, in this respect,” he submitted.

Quoting Chief Justice Bhagwati of India, Fitzpatrick said, “While judges maintain our personal integrity, it is the Bar that fiercely maintains the independence of the Judiciary as an institution. The Bar has a vital role to play in safeguarding judicial independence. The legal profession must raise its will and fight in defence of the independence of the Judiciary.”

He recalled that during the last Constitutional Conference, the Guyana Bar Association had called for the Judicial Service Commission to be strengthened by including a member from the Law Faculty of the University of Guyana who was selected by the Faculty of that institution. This measure was implemented by the ANC in South Africa immediately after apartheid was defeated. However, in Guyana, it was rejected by the government of the day.

“The whole area of judicial independence should be reviewed in Guyana. Given the Burnham-style Presidency that was criticized by the then opposition but later embraced by it after it won the 1992 election, it is virtually impossible to have a fully independent judiciary. Without a Head of State that does not belong to (much less lead) a political party, political considerations can never be separated from the assessment of professional and personal qualifications for such office,” he submitted.

Fitzpatrick is of the opinion that the proposal put forth by the Guyana Bar Association during the last constitutional conference merits reconsideration.

DISCRIMINATION
In addressing another major issue, the Senior Counsel said the system still discriminates against women lawyers, although they are, and have always been, the backbone of one of the greatest creations over the last generation — the Guyana Legal Aid Centre.

“Why haven’t we had a female S.C.? Over the last decade or two, I have known at least three female counsels who would have been appointed in a more equal environment. One left Guyana and two have since accepted judgeships,” he pointed out.

Though highlighting a number of major concerns which face the legal fraternity, President of the Guyana Bar Association, Christopher Ram, said new Attorney General Basil Williams has demonstrated a “refreshing openness and accessibility to the profession.”

According to Ram, such access is necessary if the problems that have plagued the profession for decades are to be addressed.

Ram pointed out that, in less than one month, Chief Justice Ian Chang will proceed on pre-retirement leave, thereby creating a huge void on the Bench. This vacancy, he lamented, also creates another opportunity to “end, once and for all, the unhealthy practice of long-term acting appointments in the judiciary.”

“It cannot be overstated that such a practice is unhealthy for the society, and undermines the independence of the judiciary,” he declared.

NEW RULES

The Guyana Bar Association has been invited to a meeting with the Chancellor next week, to discuss the introduction of the New Rules of Civil Practice.

“The Chancellor’s commitment made to the Bar Association is that 2015 will be the last year for what are referred to as Rules of the High Court, and which some still refer to as the RSC. This has another positive benefit. The absence of the new Rules has been the reason given for the Judicial Review Act to be still-born,” Ram said.

The Bar Association President also referred to the tentative steps taken in 2015 towards the long-awaited constitutional reform. He is hopeful that the reform would allow for the vision of an inclusionary democracy to be realized.

“One week ago, there appeared in the Gazette Bill No. 12 of 2015, the Law Reform Commission Bill, to be laid by the Attorney General. The Bar Association is heartened by this development, and will be making a submission on the Bill for consideration by the National Assembly,” Ram revealed.

“It means that one out of every three members is a member of the Council of the Bar Association. I may hear that that has always been the case. So it might, but speaking for myself, I do not see how the Association can succeed with such minimal numbers. A Bar Association needs to do much more than issue an occasional press release,” Ram contended.

Attorney General and Legal Affairs Minister, Basil Williams, said the government has proposed a number of plans that will create a menu of opportunities for lawyers, allowing them to operate outside of the traditional realm.

“Besides the traditional legal offices of the State, job opportunities beckon in many ministries, including that of Energy (Green) oil and mining; the Environment; Trade; Foreign Trade re public and private international contracts,” he pointed out.

In alluding to the Cybercrime legislation, Minister Williams said introducing cybercrime offences create a window, a whole new regime that would require investigators, prosecutors, defence counsel, magistrates and judges to understand and execute.

Similarly, in the Oil and Gas Industry, lawyers are required to understand and execute international petroleum contracts in their various permutations — concessions; production sharing and joint ventures.

“Our attorneys can represent the government or international petroleum companies, service companies and the like. Key clauses required in such contracts include arbitration and settlement of disputes,” he explained.

“There is also a shortage of legal draftspersons throughout CARICOM”, he disclosed. (Svetlana Marshall)