…says refusal ‘may result in an order to enforce the rights established by the declaration’
The Guyana Bar Association in the latest body to speak out against the apparent brushing aside, by President David Granger, of the legal declaration made by the Acting Chief Justice (CJ), Madam Roxanne George-Wiltshire,SC, in relation to the interpretation of the Constitution of the Cooperative Republic of Guyana with respect to the appointment of a Chairman for the Guyana Elections Commission (GECOM).
Marcel Gaskin, a businessman and engineer, had moved to the High Court in March of this year to challenge the constitutionality of President Granger’s reasoning behind his rejection of Opposition Leader Dr Bharrat Jagdeo’s list of six nominees.
Gaskin had wanted the court to determine whether Jagdeo’s list of nominees was indeed not “fit and proper” as declared by President Granger.
Roxane George-Wiltshire, SC
The Chief Justice had explained, in her ruling, that while the Constitution states that nominees for the post of GECOM Chairman should fall into the categories of judge, former judge or someone eligible to be a judge, the first two categories are not compulsory. She also noted that the term “any other fit and proper person” allowed more space to select the six candidates, while highlighting that “there is no mandatory category.”
The President in responding to the ruling told the media that “the Chief Justice [CJ] gave an interpretation based on her perception of the Law and I will continue to act in accordance with my perception of the Constitution; that is to say I will not appoint somebody who I do not consider fit and proper.”
The Bar Council of the Bar Association of Guyana noted in a released statement that “declaratory orders made by the Chief Justice, based on Her Honour’s application of principles of law, are not interpretations or opinions but, like all other orders of court, are pronouncements of the law made in formal proceedings on a particular legal state of affairs.”
Moreover, the Bar Council outlined the legal treatise pertaining to a declaratory order and quoted “…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.”
According to the Council, the “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.”
However, the Bar Council says 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.”
See their full statement below:
The Bar Council of the Bar Association of Guyana notes the remarks of His Excellency the President of Guyana on 19 July 2017 concerning the judgment of the Chief Justice in Marcel Gaskin’s recently concluded application for declaratory orders.
Mr. Gaskin, in proceedings commenced on 20 March 2017, asked the Court to make certain declaratory orders on the meaning of Article 161(2) of the Constitution, which provides for the appointment of the Chairman of the Elections Commission. Those proceedings came to an end on 17 July 2017 when the Chief Justice made declaratory orders.
At the swearing-in ceremony of Judges on 19 July 2017, His Excellency said “The Chief Justice gave an appointment based on her perception of the law and I will continue to act based on my perception of the Constitution…”.
In addition, as to providing reasons for rejecting names on a list submitted to him for possible appointment to the post, His Excellency said “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”.
The Bar Council notes that declaratory orders made by the Chief Justice, based on Her Honour’s application of principles of law, are not interpretations or opinions but, like all other orders of court, are pronouncements of the law made in formal proceedings on a particular legal state of affairs.
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 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.
The Bar Council 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.
