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It is the President’s duty alone to appoint three members of the Judicial Service Commission

March 19th, 2014

Mr Anil Nandlall, Attorney General and Minister of Legal Affairs needs to take his own advice to the media to “exercise care in what is published” (‘President consulting on appointments to JSC, other commissions –AG,’ SN, March 18). In seeking to divert blame from himself for failing to advise the President on his duty to appoint the Judicial Service Commission, Mr Nandlall blamed the National Assembly for failing to initiate the process for nominating members with respect to the commission.

There is at least one of three explanations for the almost continuous stream of statements earning Mr Nandlall some unfavourable attention: he is careless about details, as he was in relation to the Council of Legal Education necessitating a correction by the Vice-Chancellor of the University of the West Indies; he is cavalier about the constitution and the law, as in his statement that he has to issue an Assent Certificate to Bills passed by the National Assembly; or he is mischievous and obfuscatory, as in this case.
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Was Whittaker articulating government policy?

March 9th, 2014

On March 7, 2014, the Stabroek News carried an article in which Mr Norman Whittaker, Minister in the Ministry of Local Government is reported as asserting that the “vast majority of the populace is not prepared for the holding of local government polls by August 1st” and that “to go ahead would result in the waste of a lot of money.”

Even by the standards of inanity now associated with the “vast majority” of the PPP/C and government spokespersons, Mr Whittaker’s statement is outstanding for its disconnect with the Constitution of Guyana and the laws relating to local government elections. But it may be more than simple ignorance: it shows the little or no regard which PPP/C ministers have for democracy and the drift to autocracy which Guyana has suffered since democracy returned to it in 1992 and the last local government elections were held in 1994.

Even if Mr Whittaker had read only up to Article 12 of the constitution he would be aware that “local government by freely elected representatives of the people is an integral part of the democratic organisation of the State.” He would also have some passing familiarity with the fact that Chapter VII in its entirety is devoted to Local Democracy, and that Article 71 pronounces that “Local Government is a vital aspect of democracy and shall be organised so as to involve as many people as possible in the task of managing and developing the communities in which they live.”

I do not for a moment believe that Mr Whittaker is unfamiliar with those articles. What I believe is his real problem – apart from the dread that local government elections will be disastrous for the PPP/C – is Article 75 which allows for local democratic organs to be autonomous. Not surprisingly, a party whose article of faith seems based on George Orwell’s Animal Farm, has successfully delayed local government elections for seventeen years, depriving citizens of their constitutional rights.

The citizens of Guyana expect that those responsible for the holding of local government elections will discharge their constitutional and statutory duties. We have a full-time Elections Commission (GECOM) which between 2007 and 2013 inclusive, but excluding election year 2011 benefited from ten billion, four hundred and seventy six million dollars ($10,476 million).

The Local Authorities (Elections) Act gives the power (and the duty) to fix the date for local government elections to the Minister of Local Government. Mr Whittaker has no discretion as to whether citizens want such elections or not and he should be confronted in the National Assembly with his unbelievable nonsense. Moreover, the President or his Governance Advisor must tell the country whether Mr Whittaker was articulating government policy.

The parliamentary opposition and civil society organisations must now provide the leadership to stop this abuse of citizens’ constitutional rights and do everything that is necessary to ensure that local government elections which were due since 1997 are held no later than August 1, 2014.

The Budget cuts case

February 24th, 2014

Introduction
The abrupt resignation earlier this month of Court of Appeal Justice Rabi Sukul which I addressed last week on this Blog continues to reverberate in the community, along with two other issues with implications for the judiciary. The first involved unusually swift justice dispensed in the case of baby-sitter who admitted to slapping her one year old charge, the daughter of a magistrate mother and a lawyer father. Without even asking for a Probation Officer’s report, the magistrate sentenced the legally unrepresented teenager to five years in prison. One section of the press had earlier reported the sentence as sixty months but that appears not to be correct.

The second issue raises the question whether a lawyer admitted to practise in the Courts of Guyana who is subsequently convicted in another jurisdiction should be allowed to return to practise in the Guyana Courts. Both in this and the Justice Sukul’s matter the (alleged) misconduct took place outside of Guyana.

There is a striking contrast between the considerable media attention and feedback to these issues and the silence of the major stakeholders over the challenges facing the judiciary. Even if this matter had involved a puisne judge it would have been serious enough to warrant attention. In this case a Court of Appeal Judge and the constitutional body the Judicial Service Commission (JSC) are involved but yet there is virtual silence from the head of the Bar, Minister of Legal Affairs and Legal Adviser to the Government.
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An embarrassment rather than a celebration

February 16th, 2014

Introduction
Fate could hardly have been crueler. This week marks the first occasion that the Caribbean Court of Justice (CCJ) is meeting in Guyana as an itinerant court. It should have been a moment of pride for our judiciary and a tribute to our own Justice Madame Desiree Bernard, CCH, OR on whose long legal career, including a place on the CCJ, the curtain will soon close. Instead, the cocktails and lunches being arranged for our distinguished visiting legal luminaries will not erase the embarrassment of the most recently appointed member of our appellate court Justice Rabi Sukul being disbarred from practising in the UK by the Bar Council of England and Wales for intentionally misleading his client by drafting false grounds of appeal.

At every hopeful point at which the pessimists think the country has exhausted its sack of scandals, another one surfaces, exposing the immoral underbelly of a soulless country: one of failed, or dysfunctional, or non-functional national institutions. A separate piece can be written about every one of those institutions and even more about the individuals responsible for their moribund state. But we – and I mean mainly the business class and the professionals – are too comfortable, compromised or cowardly to challenge the illegalities and improprieties that are perpetrated daily by public offices in Guyana.

What is frightening is that a colleague who practises daily in the courts told me that the sin of drafting false grounds of appeal that led to the disbarment of former Justice Sukul is committed regularly in the Guyana courts, even by seasoned lawyers. Those civilized rules seem alien to Guyana where an attorney convicted and jailed in Canada practises in the courts in Berbice despite the information about his conviction having been brought to the attention of and acknowledged by the Attorney General.
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Written Submission to the Select Committee on the AML+CFT (Amendment) Bill 2013

February 7th, 2014

The following is the text of recommendations made to Mr. David Granger, Leader of the Opposition, in connection with the Anti-Money Laundering and Countering the Finance of Terrorism (Amendment) Bill 2013. In addition to these recommendations, I provided him with a copy of my submission to the Select Committee on May 24, 2013 (see here)

In my view there is need not only to address the amending legislation but the principal Act as well. Indeed I do not believe that there is anything particularly troublesome about the amendments: the problems are with the principal Act.
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