–Bar Association urges State

THE Guyana Bar Association said it is hopeful that the State will abide by the declaratory orders made by Chief Justice (ag) Roxanne George on the appointment of a chairman of the Guyana Elections Commission (GECOM).
Justice George ruled recently, in an application brought by city businessman Marcel Gaskin, that the position does not have to be occupied by a judge, former judge or person qualified to serve as a judge.

She also ruled that while the President has the ultimate say on who is determined fit and proper to serve in the post, and could also reject the list of nominees, he should provide reasons as to why specific persons are unsuitable.
The list of nominees is to be submitted by Opposition Leader Bharrat Jagdeo, who has had his first two lists rejected.

Subsequently, at a swearing-in ceremony of judges on July 19, President David Granger said while “the Chief Justice gave an appointment based on her perception of the law I will continue to act based on my perception of the Constitution….”
Further, when asked to provide reasons for rejecting Jagdeo’s first two lists, the President stated that: “If you can show me the article of the Constitution which requires me to give reasons, I will comply with the Constitution, but I will not do what the Constitution does not require me to do.”

However, the Bar Association on Saturday said that the declaratory orders made by the chief justice were done after she would have applied principles of law.
As such, the legal body believes that the chief justice’s pronouncements are “not interpretations or opinions” like other orders of court, but rather, they are pronouncements of the law made in formal proceedings on a particular legal state of affairs.

The Bar Association noted that the leading legal treatise on this type of order describes the effect of a declaratory order in the following terms: “…whilst the defendant is assumed to have respect for the law, justice does not rely on this alone. A declaration by the court is not a mere opinion devoid of legal effect: the controversy between the parties is determined and is res judicata as a result of the declaration being granted. Hence, if the defendant acts contrary to the declaration, he will not be able to challenge the unlawfulness of his conduct in subsequent proceedings.”

The body pointed out that this treatise makes it clear that the refusal to abide by a declaratory order may result in an order to enforce the rights established by the declaration.
Having advanced this argument, the association said that it is confident that, like in every other society which respects and safeguards the rule of law, the State will abide by the declaratory orders made by the chief justice.