By Dr Vishnu Bisram

MINISTER Nigel Dharamlall was criticised for comments uttered on the two-one Appeal Court ruling in the election petition. I will not comment on Mr. Dharamlall’s criticism (words) of the two judges and the ruling itself but instead focus on his and the public’s right to critique (not attack judges) judicial rulings and the concept of judicial independence. Is the judiciary above criticism? Does Guyana really have judicial independence (up to the Court of Appeal)? The public is grateful that there is a CCJ to oversee rulings in Guyana, especially the kind of rulings delivered on the GECOM Chair appointment and the no-confidence motion.
Those who excoriated Dharamlall say a member of the Executive branch (and by extension the legislative branch since the Executive branch comes from the legislative branch in Guyana) should not comment on the judicial branch. In which democratic country is the judicial bench not criticised? When there are ‘nonsensical rulings’, shouldn’t these be critiqued?
In my readings in comparative politics, in every democracy, the public and Executive as well as legislative branches voice their opinion on very (injudicious) court rulings. The members of the government freely criticise rulings including in the USA where more Guyanese live than in Guyana.
In a functioning democracy, there are three independent branches of government. Guyana is somewhat unique where the legislative branch (MPs of a ruling party) must toe the line of the Executive branch or be removed from Parliament.

In Guyana there is a concern that a judge may rule not on the basis of the law or fair principles.  Even when a ruling is given based on the highest merit of the law, devoid of race, members of the public still view it as racially or party aligned. Regrettably, the ruling of the two judges is viewed in such light. Ditto the Indian judge.

In the US and developed countries, there is ‘true independence’ of the judiciary. Judges don’t face political pressure to rule in favour of the Executive or deliver rulings that are ethnically aligned. The judges’ ethnicity hardly impact on rulings. In the US, and in other developed countries, judicial rulings have not been free of controversy. And legislators as well as members of the Executives were severely critical of rulings. (In the US and mature democracies, judicial rulings have the effect of law). They (Senator, Representatives, MPs) freely give their views of judicial rulings. If a judge were to rule that 33 is not a majority of 65 in the US or any other country, those judges would immediately submit a letter of resignation from the bench. What judicial integrity is in such a ruling? On what legal principle was such a ruling justified. On law, logic and arithmetic, it was not sustainable. One must conclude some other factor influence and contaminate the judges’ mind to render such a decision. I believe this is what motivated Mr. Dharamlall to utter that scathing rebuke of the petition ruling.

If judges were allowed with the ruling that the no-confidence motion was not valid, with 33 is not a majority of 65, then they can ultimately rule that some peoples’ votes are not valid throwing out legitimate votes to determine the outcome of an election. There was an attempt to disenfranchise voters that could have ended up in court. When judges know that their rulings are scrutinised and are criticised, they will rule competently and competently.

I note that the Chief Justice was vilified by the APNU-led coalition for her ruling a year ago dismissing the election petition. Also, Justices Carl Singh and BS Roy were attacked for what many felt was a very good ruling in the third term matter. I recall that Raphael Trotman and Moses Nagamootoo criticised Chancellor Carl Singh’s court majority ruling on the so called ‘Jagdeo third term case’. If it was okay for politicians to criticise the judiciary then, why can’t Dharamlall criticise the judges now?
Dharamlall is a member of the Executive branch, but he is also a member of the public who happens to be a member of the Executive and a member of the legislature. That empowers him over and above the average citizenry to level criticism at the judiciary. Democracy demands that each arm of government oversights the functions of the other. It is so in the USA, UK, India, Australia, Canada, etc. Dharamlall and the Executive as well as the legislature must criticise flagrant judicial excesses. (And I am not referring to the petition ruling) but the right to hold judges accountable.
While I don’t support Dharamlall on his call for defrocking judges, he is echoing the view of his party’s supporters. A recent survey I conducted revealed that the public feel the judges are biased. Should he ignore them, a practice of bad representation?
It is a noble principle that when politicians act excessively, the populace calls for their resignation and/ or vote them out. The same principle ought to apply to the judiciary; they can’t be removed by the electorate. But the public and their representatives are empowered to criticise them. Judges are not sacred cows.
This idea that the judiciary is beyond criticism is a holdover from the colonial era. It was practiced to protect colonial authority and to instill fear in the population to prevent dissent. This halo, colonial practice, has to be removed.
Judges are paid by taxpayers. They are not impervious to criticism. The public and the legislative and executive branches have a right to critique rulings. But it is best if the members of the government don’t make comments about judicial rulings as these would be interpreted as an attack on the court.

Vishnu Bisram is a political analyst