IN giving testimony on behalf of an obnoxious, pompous, racist Guyanese citizen, Walter Ramsahoye (deceased) in a libel case Ramsahoye brought against me, Ramon Gaskin told the judge that I criticised everybody in Guyana including judges. Gaskin introduced my critiques of the judiciary to influence the judge.

Judges are not infallible and, from time to time, all over the world, judges make decisions that are not based on a meticulous reading of the complexities of the constitution and also the intricacies that reside in the laws of a country. All over the world, judges give decisions that should be left to the elected legislature and executive to make. In the United States, the judicial process is shapeless and it is getting worse. Space would not allow for examples from that country.

In Guyana, the episode in the Court of Appeal (CoA) of what number constituted a majority of 65 was particularly alarming in that it embarrassed Caribbean jurisprudence and hardened the attitude of leaders in CARICOM who believe the Privy Council should be retained because English judges are not prone to political bias and are more intellectually profound.

In the case of the CoA, the embarrassing moment was the strange introduction of the one-half plus mechanism in arriving at what constitutes a majority of 65. Madam Chancellor argued that to pass a no-confidence motion, an absolute majority, not a simple majority, is needed. But there is no document in existence that defines what number makes up an absolute majority.
Madam Chancellor invented the one-half plus formula to arrive at an absolute majority. She reasoned that half of 65 is 32.5. The rounding-off process must be done to arrive at a majority. When you do the round off it becomes 33. But the Madam Chancellor and CoA judge, Justice Gregory Barnes, noted that you have to add 1 to 32.5 which gives you 33.5 and you have to round off which will give you 34.

What was mysterious about the Chancellor’s ruling is if you need an absolute majority and 33 isn’t it, then, why is 34 an absolute majority? The two judges never explained why 34 and not 33 is an absolute majority. A more intellectually subtle approach that the two judges should have taken is to arrive at an arbitrary number of 40. Stick with 40 and assert that 40 is an absolute majority to have a no-confidence motion passed.

The Caribbean Court of Justice (CCJ) would have thrown out the arbitrary arrival of 40 anyway but that would have been less embarrassing than the jiggery-pokery, circuitous route of 32. 5 rounded off at 34. The decision of 34 being an absolute majority of 65 is the lowest moment in the jurisprudence of British Guiana and Guyana. When the CCJ upturned that decision, I feared that the status of the Privy Council in CARICOM was given a boost.

There are errors in decisions in the High Court of Guyana that will continue to embarrass Guyana’s jurisprudence because the CJ will strike them down, two of which came from the pen of Justice Kissoon. I am contending that no court of law can compel a company to take out unlimited insurance. Not having insurance is a physical threat to workers and is a violation of workers’ rights.

But to decide that a company must have unlimited insurance cannot hold. Even if the figure was astronomical and it compels the company to appeal, unlimited insurance cannot stand and I think the CCJ will reject it. I believe ExxonMobil should have a large insurance sum but the courts have limitations on its jurisdiction and when that jurisdiction is exceeded then society should engage in analytical debate.

For example, Justice Kissoon directed the EPA to withdraw the permit it awarded ExxonMobil if the unlimited insurance was not complied with. If ExxonMobil had disagreed, what that meant was that the largest investment in Guyana’s history and maybe the main fulcrum of the country’s economy would have collapsed. The judiciary here was erasing the separation of powers.
The second decision by Justice Kissoon is again explosive. The judge ruled that teachers must be paid for time that they were on strike.

A cursory glance at that decision would reveal that it leaves the state helpless. It takes away the power of the executive in this context. But, more importantly, it undermines social stability and one suspects this reason will be part of the grounds for appeal.
What Justice Kissoon’s decision has done is to remove the power of the state to respond to what the state perceives as threats to the ability of an elected government to govern. If you can be paid for striking, then why not strike indefinitely?