Dear Editor,
The recent criticisms by Guyana’s Attorney General, Hon Anil Nandlall, and Vice President Dr Bharrat Jagdeo respectively, of a Magistrate’s and a Judge’s ruling in two separate public interest cases, have re-ignited a debate on whether it is acceptable to criticise Judges’/Magistrates’ rulings, and even the trial process.
It is my considered view that Judges’/Magistrates’ rulings should be subject to scrutiny and criticism, but must be devoid of disparaging or distasteful remarks about the Judicial Officers.
Concerning whether it is right or wrong to criticize the Court’s rulings, Mr. Ralph Ramkarran, SC, recently rebuked Dr Bharrat Jagdeo for criticising the decision of Justice Sandil Kissoon, who ruled that Exxon’s affiliate, Esso Exploration and Production Guyana Limited (EEPGL), “is in breach of its permit, which requires “unlimited” insurance protection in the event of an oil spill.”
Noting that Mr. Ralph Ramkarran had also criticized the NCM-related ruling of the Caribbean Court of Justice in September 2019, Dr Jagdeo wondered if Mr. Ramkarran has made a U-turn! Mr. Ramkarran wrote: “Its (CCJ) ‘timid and ineffectual’ decision has intensified the constitutional chaos in Guyana. High Court cases are now being brought for orders and declarations that the CCJ ought to have made.” He continued: “Criticizing judges and courts in far sharper language than mine is quite an accepted activity in normal countries.”
Disappointed with Justice Kissoon’s ruling, Dr Jagdeo “expressed the view that the Judiciary is treading in murky waters by directing a regulatory agency on how to do its job, and setting a timeframe on when it should complete certain orders.”
There appears to be some tension between the Judiciary and the Executive, and this is based partly on differing ideological approaches to analyzing issues. There is the School of Judicial Restraint (where Judges should only interpret the law, decipher legislators’ intentions, and not make laws). The other is the School of Judicial Activism, (where judges go beyond offering interpretations and tend to make laws).
Mr. Anil Nandlall was accused by the Guyana Association of Women Lawyers (GAWL) of criticizing the ruling of a Magistrate in a case involving former Finance Minister Mr. Winston Jordan, who allegedly sold a Georgetown (waterfront) state property valued at US$40 million for US$100,000. Mr. Nandlall stated: “I resolutely maintain that I am entitled to express such a view, and that the same falls within the bounds of permissible criticism countenanced by law.” He cited Lord Atkin, who in 1936 posited: “But whether the authority and position of an individual Judge or the due administration of justice is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticizing in good faith in private or public the public act done in the seat of justice… Justice is not a cloistered virtue…”
Mr. Nandlall and Dr Jagdeo, two key Government policy-makers, exercised their free speech right in two matters of significant public interest. They know that a cardinal principle of democracy is freedom of expression/speech, subject to restrictions such as invasion of privacy, public safety, national security, obscenity, hate speech, and slander/ defamation; but they must exercise their fiduciary right to protect and defend the state’s interests. The Guyana Constitution, Article 146 (1), affords them this right. “Except with his or her own consent, no person shall be hindered in the enjoyment of his or her freedom of expression…” Article 146 (1). Nowhere in the Guyana Constitution do Judges/Magistrates’ rulings fall into the restrictive categories.
In the bastion of democracy, the US, any citizen, scholar, or the media can criticize judicial proceedings at any stage in the process, including rulings. The power of free speech is captured in the First Amendment to the US Constitution: “Congress shall make no law…abridging the freedom of speech.” In Guyana, freedom of expression /speech relative to the Judiciary has been partly restricted by the non-constitutional ‘sub judice’ rule (by which citizens or the media are not allowed to criticize the process of a trial). Notwithstanding, Executive policy-makers have shown a willingness to exercise their free speech rights and criticize Judges’/Magistrates’ rulings.
Some of us still treat the Judiciary as a divine-like institution, to be viewed with “awe.” This is a colonial relic, and should be devoid of its “sacrosanct’ nature. Citizens, the media, and policy-makers asserting their free speech right do not, in any way, undermine the Judiciary’s work or detract from its role in the administration of justice.
Further, none of the branches of Government, including the Judiciary, should stifle citizens’ freedom of expression/speech; they should demonstrate that sovereignty indeed belongs to the people.
The evolution of the administration of justice has been impacted by the growing need for fair play, transparency and accountability, as well as new forms of social and economic relations. The rule of law must therefore be relevant, and aligned to changing social reality and national development needs. We cannot make old laws and customs the foundation for a new social development any more than the old laws and customs created the old social conditions.
Sincerely
Dr Tara Singh
