Judicial ethics

While Guyana at present is classified as one of the democracies of the world – although it came close to losing that status last year – it does not exhibit the full range of characteristics associated with a liberal democracy. As such, while lip service is paid to the rule of law, in practice the governments in office since 1992 have tended to operate on the basis that the requirements of democratic practice have been met once there have been free and fair elections. After that it is a question of exercising as much control over governing the land as the few constitutional constraints will allow.

One of the most important of those constraints is an independent judiciary, which the highest officers of the court seem to recognise. Last week the judiciary launched its revised code of ethics with a view to ensuring integrity, impartiality and independence in upholding the rule of law.

The first code of conduct was drawn up in 2003, but in delivering the feature address Justice Adrian Saunders of the CCJ explained that ethical standards for judicial officers had not remained static. According to Chief Justice (ag) Roxane George-Wiltshire the revision of the code was the initiative of Chancellor (ag) CummingsEdwards who appointed a committee of judges and magistrates to review and revise it.

The Chancellor was reported as saying that “as unbiased interpreters of the law” and dispensers of “justice in a fair and transparent manner” the judiciary needed to be guided by a body of ethics. She adverted among other things to the personal standards of judges and magistrates, saying that if the judiciary is the legal and moral compass of society, then its members must live up to higher standards themselves. This was also underlined by Justice Saunders, who was reported as observing that public confidence in the administration of justice could only be achieved “if we consistently conduct ourselves in an ethical manner in both our judicial and personal lives.” The private conduct of a judge, he told his audience, could have a serious effect on the public’s perception of that officer’s impartiality.

In this day and age social media have to be taken into account as well, and as we reported the code requires that the standards of judicial conduct and ethics are also to be applied to the digital lives of judges and magistrates, and not just their real lives. The code says that the way a judicial officer uses social media could have an impact on the public perception of all judicial officers and confidence in the judicial system, so when using it they must ensure they do so with the integrity and decorum reflecting the dignity of their office.

But of course, not surprisingly the code places emphasis on there being an independent judiciary that has integrity, which is indispensable to impartial justice. Where the last mentioned is concerned, it says this is crucial to the discharge of judicial office and applies not just to making the decision, but the process by which the decision

is made. There are also strictures about making sure that all those who come before the courts receive equality of treatment, and that there is an understanding of the diversity in the society, among other things.

But what the public will be most interested in is the independence of the judiciary, which is something its highest officers here seem to aspire to but which the government may have less enthusiasm for. Trying to manoeuvre in such a way that a governing party or executive president has sympathetic judges on the bench should a case in which it has an interest come before them, is by no means confined to this jurisdiction. The appointments to the Supreme Court of the United States are a prime example. Governments and opposition here have not been above trying to manipulate judicial appointments, which is why Guyana has not had a substantive Chief Justice for twenty years after Justice Desiree Bernard was made Chancellor in 2001, and no substantive Chancellor since she resigned from that post in 2005. Justices Cummings-Edwards and George-Wiltshire have been acting in their posts since 2017, following the retirement of Chancellor (ag) Carl Singh. He had served in an acting capacity for twelve years, while Justice Ian Chang was Justice George-Wiltshire’s immediate predecessor who was also never confirmed in the post.

The sticking point is the requirement in Article 127 (1) of the Constitution that, “The Chancellor and the Chief Justice shall each be appointed by the President, acting after obtaining the agreement of the Leader of the Opposition.” There has, of course, been no such agreement, although whether one could be procured under the current administration has never been put to the test because President Irfaan Ali refuses to speak to Opposition Leader Joseph Harmon until he recognises the PPP/C government as legitimate.

It is an utterly unconstitutional demand, but that does not appear to have disturbed the President, so we are left with an anomalous situation whereby the two highest judicial officers in the country remain acting, something which in a different context Justice

Saunders remarked was undermining the rule of law. That reality too, does not appear to have caused our head of state any uneasiness.

The problem does not stop there. The Judicial Service Commission in addition to other constitutional commissions has also not functioned since its expiration on September 30, 2017. This is another situation where the constitution requires consultation between the President and Opposition Leader for the appointment of the Chairman in particular, but once again everything is stymied. And so the society cannot progress.

Two months ago we reported AG Anil Nandlall as saying that President Ali was in the process of conducting the necessary consultations in order to have the appointments made by the end of August. When pressed by our reporter as to how that would be possible, given the President’s adamantine stance in relation to speaking to Mr Harmon, he responded that the two would have to “fashion a way forward.” They clearly haven’t fashioned any forward route as yet, although the onus lies on the head of state, not Mr Harmon to do so.

So here we are in this rather contradictory situation, where the judiciary is committing to a revised code of ethics in the interest of its independence, integrity and impartiality, while the government appears to be guided by other notions. Justice Saunders was reported as saying that the implementation of the code demonstrated the judiciary’s commitment to the people of Guyana and to the rule of law. In contrast, President Ali and the government he leads are giving every indication that the Constitution is to be adhered to when only when it is expedient to do so, and as for the rule of law, that is hardly a matter to disturb their collective slumber.