Dear Editor,
SUBSEQUENT to the recent ruling of the Court of Appeal by a majority of two judges of a three-member bench, finding that they had jurisdiction to determine the correctness or otherwise, of a decision of the chief justice in the matter of an election petition, there have been trenchant criticisms of the majority ruling. Conversely, there has been criticism of the critics of the majority ruling to the effect, that their criticisms scandalised the court and was an attack upon the majority judges which violated the separation of powers. The criticisms flowing from the majority judgment are identified with government support and on the other side, with the opposition and its agents.

Here in Guyana and elsewhere in the Commonwealth, instances abound of criticism of the decisions of judges. A few years ago in Australia, some ministers of the Australian Government referred to certain judges of the Appeal Court of Australia as “hard left activist judges,” who had “eroded any trust left in the legal system.” In the United Kingdom in a certain case, the judges were described as “enemies of the people” and about the decision in the same case, one leading newspaper in London carried the caption “The day democracy died.” A decision of UK judges to prohibit publication of the book “SPYCATCHER” evoked a response from a British newspaper carrying the headline: “YOU FOOLS” and the report was accompanied by a photograph of the judges upside down, standing on their heads! In the famous Birmingham six appeal case, an appellate judge was described in the media as being possessed of “narcissistic arrogance” and “worthless certainty.” Another judge in the same case was described as simply not fit for a position in which he had the power to put human beings in prison.” The writer made the unambiguous demand that both of the judges “have got to go.”

Guyanese will not forget the virulent attacks by APNU+AFC politicians upon the Chief Justice, the Honourable Roxane George, consequent upon her decisions in some recent election-related cases which engaged her attention, whereby she was damnified and vilified and unfairly and unjustly referred to in no uncertain terms as “a PPP/C activist.” In the months immediately before he demitted office, former Chancellor of the Judiciary, Carl Singh, was subjected to vile and demeaning attacks by APNU+AFC government agents, which attacks were appropriately described by the former Speaker of the National Assembly, Senior Counsel Ralph Ramkarran, as being in the nature of “unprecedented savagery.”

So attacks/criticisms of the judiciary are nothing new and are now viewed in relation to judges as an occupational hazard. Since from around the 1930s in the UK, the freedom of the citizen to criticise the judiciary has been indisputably recognised, though as Attorney-General Anil Nandlall has correctly pointed out, such criticism must be done in good faith and the critic must be respectful.

The current position, though established years ago, is still of meaning and relevance. It was explained by an English judge who said “Justice is not a cloistered virtue, she must be allowed to suffer the scrutiny and respectful, even though outspoken comments of ordinary men.” This position prompted Lord Carswell in the UK to remark that “Judges have to be hardy enough to shrug off criticism, even if it is intemperate or abusive, which has happened, even if it is unfair and ill informed…”

The recent ruling by our Court of Appeal bore overtly high political tones. A ruling which went against the case presented by the ruling party was bound to attract criticism, but the criticism was contextualised. Reference was made to the patently erroneous conclusion arrived at by this very pair of judges in the APNU+AFC “no confidence vote” appeal, that a vote by 33 members of the 65 member National Assembly did not represent a majority vote. This, as the CCJ judgment demonstrated, was an absurd judgment. It was a judgment that had no basis in arithmetic, logic or law. It represents an odious stain on the jurisprudence of our Court of Appeal. One recalls in the televised report of the proceedings of the CCJ, the scornful grin on the face of a member of the bench in response to the arguments of counsel that 33 was not the majority of 65.

In analysing this “no confidence vote” decision of our Court of Appeal, one must of necessity consider what informed such an obvious, patently wrong decision. In so doing, certain realities must be confronted. Every judge in Guyana has the right to a vote. The exercise of that right to vote is influenced by political considerations. While of necessity, to convey their neutrality, every judge is expected to keep their political choices/preferences in their bosoms, but it is nevertheless there. When therefore, a case of high political flavour is decided against logic, law and reason, such a decision invites the not unreasonable inference or conclusion that the judge/s were unconsciously biased and gave effect to their political preference/s. This is not an unreasonable nor unfair inference or conclusion. Particularly in the context of Guyana’s politics, a not insignificant section of our society would perceive the judge /s in such circumstances to be affected by bias. In the particular case of the majority judges in the recent ruling in the Court of Appeal, serious consideration by them is respectfully urged of this prevailing public perception which is unavoidably intertwined with their highly flawed and unreasonable decision in their “no confidence vote” appeal decision. Such consideration should inevitably lead to their further consideration to recuse themselves from any further hearing of this election-related matter.

Yours sincerely,
Selwyn Persaud