CCJ President visit with Ali out of place, undemocratic and disrespectful

Justice Saunders’ decision to visit the Office of the President, raises more questions than answers can provide. It has left a bitter taste in the mouths of many Guyanese, most of whom are eagerly awaiting the resolution of the elections’ petitions, and the remainder of CARICOM,  who are closely looking at Guyana’s exclusionary approach through its Local Content Policy and ‘One Guyana’ initiative.

In an invited comment today, a prominent Senior Counsel in Trinidad accused the Court’s President of descending into the arena of politics and thereby taking the judiciary of the entire region to a new low.

A retired Senior Counsel in Guyana who wished not to be named stated, “Saunders is the first sitting judge in more than two decades to visit a political leader of Guyana”. The former UWI lecturer stated that “the visit was out of place, and not reflective of judge-like behavior, expected from a senior jurist of the Caribbean’s Highest Court”.

Former Chief Justice of India, P.N. Bhagwati on the role of judicial activism, (6 March 1996) had observed that Judges and the legal profession have a continuing duty to not say or do anything, either by commission or omission, that will bring the practice of law into disrepute, public ridicule or condemnation.

It is for this reason he stressed, that the Supreme Court Justices of the United States attend the State of the Union as a matter of national importance, but do not endorse or disagree with any policy and political statement of the US President. They do not applaud, smile, or frown in response to the political rhetoric of either side.

The Code of Conduct for United States Judges is like that of the CCJ, which provides guidance on their performance of official duties and engagement in a variety of outside activities. Cannon 5(c) of the Code provides that a judge should not engage in any other political activity. This provision does not prevent a judge from engaging in activities described in Canon 4.

Cannon 4 activities include attending a university graduation to deliver the keynote address, flag raising, Veteran’s Day memorial, and such activities. The tenacity and acumen expected of a judge is one where there is no fear or favor, affection or ill-will towards anyone or thing.

While it is a renowned practice in international relations for courtesy calls to be paid to Heads of States and Governments, by senior politicians, policymakers and executives of international corporations and Non-Governmental Organizations (NGOs) with the aim of pushing the policy agenda of their Organizations and countries; such activities are the kind a Judge should not participate in.

Additionally, issues of common concern are also discussed where courtesy calls are made. Any common concern between the CCJ as an institution and the government of Guyana must be properly ventilated in accordance with the mechanism established by the State parties to the agreement establishing the CCJ. Justice Saunders being an employee of this mechanism (the Regional and Judicial Service Commission – RJSC) should not be paying courtesy calls on Heads of Government in the Region. This responsibility is that of the CARICOM political and policymakers and the RJSC.

Considering the important role of the CCJ in the interpretation and application of the Revised Treaty of Chaguaramas, concerning the free movement of goods, services, people, and capital, and Guyana’s enactment of the Local Content Act, which purportedly excludes unhindered participation by the remainder of CARICOM, and threatened legal action before the CCJ, the visit of its President to the Office of President Irfaan Ali who has sought every opportunity to defend the legislation, is most inappropriate and not reflective of the legitimate expectation of CARICOM nationals that the CCJ will strive to create a perception of impartiality.

Second and most importantly, the legitimacy of Guyana’s elections is a live question before the judiciary, to which Justice Saunders sits at the helm of the apex Court. Currently pending on the desk of Justice Saunders is an appeal touching and concerning the legitimacy of President Ali’s election to office. Justice Saunders’ courtesy call may very well be construed by Caribbean society to mean that the appeal is bound to fail in his mind, and the entire legal challenge is bound to fail, and that notwithstanding the legal issues to be determined, in his capacity as head of the CCJ, there is no question about Ali’s holding the office of President.

“Judges wear black robes, not for fashion, but to hide any preference, taste, and style they may have. This is important not only in clothing but in attributes and attitude. Judge-like character is one where individualism is avoided so that there can be no public perception of bias. Judges cannot afford to have favourite celebrities, restaurants, taxi drivers, or mini-buses like ordinary citizens. They have an important responsibility to ensure the judiciary is seen to be unbiased and that public trust and confidence is never lost in their office.”

In Guyana and every established democracy around the world, the judicial arm of government is represented at meetings with the Executive arm, by either the Chancellor of the Judiciary (in Guyana’s case) or the Chief Justice (in countries where there is no Chancellor). The meeting is almost always chaired by the Attorney General and Minister of Legal Affairs, who acts as the bridge between the judicial separation from the legislature and the Executive.

A good example of the working of this doctrine of Separation of Powers is seen in the budget preparation. The Registrar of the Supreme Court presents the judiciary budget to the Minister of Legal Affairs on behalf of the Chancellor. The AG takes the budget to the cabinet and thereafter to Parliament on behalf of the judicial branch, of which the AG is an officer.

In Guyana, the unwritten convention for Judges is that they never interface with members of the legislature or the President and his cabinet, in the absence of the Chancellor leading that delegation or direct contact with the AG who is an officer of the Court.

It is undemocratic by this judicial convention for a sitting member of the bench to attend the funeral of a dead politician, much less the office of a sitting politician to exchange courtesies.

More, In The Ring.