We should not forget that democracy was “invented” in its modern incarnation in Europe after the “Hundred-Year war” between England and France. With comparative peace between nations, the shift to create more stable internal conditions began with members of the nobility moving to reduce the arbitrary powers of the absolute monarchs.
But it was the institution of the Judiciary, ironically created by the Monarch, that mediated in this new struggle between the king and “the people” – as the latter kept on expanding its membership vial expansion of “democracy”. The Courts in 1610 decided that the Monarch can only rule within the law: “The Case of Proclamations” declared, “the King by his proclamation or other ways cannot change any part of the common law, or statute law, or the customs of the realm…(and that)..the King hath no prerogative, but that which the law of the land allows him.” In the same year, the Court with amazing prescience, took cognisance of the growing powers of Parliament that would eventually supplant the King’s, and ruled in “Dr. Bonham’s Case”: “in many cases, the common law will control Acts of Parliament”. Democracy, it became clear, could only exist under the rule of law.
But the decisive move in the consolidation of democracy was the acceptance by both “the people” and the “rulers” of whatever stripe was that the independence of the Judiciary was crucial in its role of interpreting and applying the rule of law without fear or favour. When following their War of Independence” in 1776s, the British-descended, American colonists drafted the first written constitution summarising the rules under which they would be governed, they split the powers of the state by introducing the institutions of the Executive, the Legislature and the Judiciary that were each paramount in their defined sphere of activity. Their acceptance of the power of the Judiciary to be the ultimate arbiter of the Constitution was made by their iconic Justice of their Supreme Court John Marshall in 1803, when he ruled that even Congress could not pass a law that was contrary to the Constitution. They had moved away from the still extant English practice that Parliament could pass any law it chooses.
We have taken this long detour into the evolution of the national institutions of democracy because of events that are unfolding in Guyana today where the independence of the Judiciary is under threat by actions taken by the Executive, via its Attorney General. The highest judicial officer of the land, the Chancellor of the Judiciary, as one of three Judges on the Appellate Court, announced two judgements that the State-owned Chronicle, citing only the Chancellor, castigated in the most “obscene and libellous” manner according to Senior Councillor and ex-Speaker of the House Ralph Ramkarran. The Chronicle then orchestrated a very public campaign to insist the Chancellor should not make a decision on a particular case that had been appealed 17 months before – one that inter alia had ruled the two-term limit of presidents needed to be approved by a referendum.
As Ramkarran pointed out, the columns of calumny in the Chronicle had to have official imprimatur so as to not only influence the sitting Chancellor but the incoming Chancellor and Chief Justice and thus compromise Judicial impartiality and independence. Ramkarran called out PM Moses Nagamootoo, who has the state “Information” portfolio but the latter later denounced the Chronicle’s actions as a threat to the Judiciary.
All Guyanese have to rise to the defence of the independence of the judiciary since this is the last institutional defence against dictatorship.
