June 25, 2017

The national discourse on Constitutional reform

With a national discourse hopefully opening up on constitutional reform in Guyana, against a background of accusations of subversion of our Judiciary for political ends by the Executive, the mechanism of “separation of powers” needs to be relooked at in general, and in reference to the Judiciary, in particular.

While the doctrine was first enunciated in the middle of the 18th Century by the Frenchman Montesquieu, it was given life in the first written Constitution of a nation – that of the 13 colonies that rebelled against the tyranny of British rule and established the United States of America. The gist of the concept is simple but profound in its implications. Since the powers of the Leviathan state can be abused when it is controlled by one person or a group, Montesquieu proposed that power could be functionally divided among Executive, Legislative and Judicial branches of the government. This allocation of powers would be described in the Constitution – the supreme law of the land.

The Executive would be responsible for running the government, the Legislature to enact laws and the Judiciary to ensure those laws are not transgressed by the citizenry and the Constitution not violated by the other two co-equal branches. Because “men are not angels”, in the words of one of the framers of the American Constitution, incumbents always try to increase their powers especially where the lines between the branches of government are not watertight.

For instance, since the Judiciary is the arbiter of the Constitution and, therefore, the guardians of the boundaries of power in the other two branches, citizens have to be very vigilant to ensure that neither of those branches hobble or control the Judiciary when they exercise their power of judicial review. It is for this purpose that, for instance, the salaries of the Judiciary must be independent of Executive control: even judicial mouths may be muzzled by the hands that feed them.

Another way in which the Executive may try to influence judicial decisions is by ensuring the Bench is packed with individuals who they are comfortable with. To lessen this eventuality, in Guyana, Judges are supposed to be nominated by the Judicial Service Commission (JSC) and then appointed by the President. If, however, the President has some concerns about the nominees, he can return the list to the JSC for reconsideration, but if it returns the list, the President has to either approve the nominees or sit on the list. In the latter case, as is presently the case in Guyana, a crisis can develop in the Judiciary since their ranks can become decimated to such an extent that justice cannot be served in the courts.

In the case of the top two judicial officers – the Chancellor and the Chief Justice, there has to be agreement between the President and the Opposition Leader. If, however, there is no such agreement – as has been the case in Guyana for more than a decade – the President can make “acting appointments” of persons who satisfy his inclinations or criteria. This situation is not very healthy for the Judiciary since citizens may see the incumbents as being compromised because their position is totally dependent on the President.

Another tack has been a growing tendency for the Executive to create administrative tribunals that are courts in all but name – but do not answer to judicial authority excepting in some instances where judicial review may be available. Even though there are several devices to strengthen independence of tribunals, in reality, the latter is rarely achieved.

Another challenge is raised when a legislature, as in Guyana, is a creature of the Executive since the party controlling the two branches are the same. A strong and independent Judiciary is even more vital here. Such legislatures may also violate the separation of powers doctrine when they enact very narrowly crafted legislation that seeks to penalise specific groups of persons. It is with good reason these are dubbed “ad hominum” laws. SARU?