Constitutional reform: public service pay and independent judiciary

In about 2012, after lambasting the ‘Cadillac lifestyle’ of the PPP/C regime, focusing upon the salaries, pension and other tax free benefits to which former presidents were entitled, the opposition in the hung parliament that resulted from the 2011 national elections sponsored and passed a resolution in the National Assembly calling for substantial reductions in those benefits and promised to make its recommended changes if it ever came to government. To its credit, after coming to government the coalition did immediately by way of the Former Presidents (Benefits and Other Facilities) Act 2015, substantially reduce, placed limits and make more predictable the benefits, including tax free concessions, to which former presidents are now entitled.

Yet its attack on the PPP/C did not deal only with the former presidents’ benefits but general lifestyle and implicit in this critique was the notion that governments should not be able to unilaterally increase their own salaries and those of the senior public service. Thus, in 2012, I stated that while I understood the concerns being raised by the opposition, ‘I believe that what is much more important and would be of lasting benefit is a root and branch approach, which firstly considers what constitutes fair emoluments in the entire public sector and establishes independent periodic salary reviews such as exist in other jurisdictions’ ( Future Notes, SN: 08/08/2012).

So when in its 2015 manifesto APNU+AFC stated that if it won the elections it would ‘Establish an Independent Constitutional Salaries Review Commission to be responsible for the periodic review of salaries, pensions and other conditions for persons appointed to Constitutional Offices, including the President, Prime Minister, judges, MPs and other special offices’, I thought this a very important commitment. For among other things, it spoke relatively positively to another important but worrying feature of Guyanese political life, i.e. the independence of the judiciary. After all, such independence cannot simply rest upon the will and integrity of judges but also upon the institutional environment within which they operate.

For example, judicial independence from the executive and legislature is vital for ‘separation of powers’ to exist and it is a central principle of the constitution of the United States, and to make judicial independence and the ‘separation of powers’ meaningful they are constitutionally buttressed by judges having life tenure. It is also recognised that even such tenure would be largely meaningless if the executive or the legislature that deals with the judicial remuneration could adjust it at will in various ways. Thus, Article 111, Section 1 of the US Constitution states that ‘The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.’ This is taken to mean that federal judges cannot be taxed.

In Federalist No. 79, Alexander Hamilton, one of the founding fathers of the US Constitution, explained that ‘Next to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support’. After the Constitution was passed, in 1802 he explained, ‘From the injunction that the compensation of the Judges shall not be diminished, it is manifest that the Constitution intends to guard the independence of those Officers against the Legislative Department: Because, to this department alone would have belonged the power of diminishing their compensations’ Further reinforcing this idea three decades later Justice Story wrote in 1833 that the Compensation Clause in the constitution was absolutely critical; ‘Without (it) the other [constitutional provision], as to the tenure of office, would have been utterly nugatory, and indeed a mere mockery’ ( https:// scholarlycommons. law. case. edu/ cgi/ viewcontent.cgi?article=1567&context=faculty_publications).

Well, as they say, ‘this is Guyana’ and this mockery is in full bloom. For decades on a daily basis and coming from every sector of society there is much talk and reliance upon judicial independence and the separation of powers but not a similar level of recognition that for these values to be secured they need to be buttressed by the existence of tenured and financially secure judges. Nothing speaks more clearly about the inappropriateness of the present political system than the fact that various regimes can proceed unpunished for extracting these major elements from this vital process. Indeed, so politically self-serving has the population become that it wishes judicial independence to rest upon the resilience of individual judges who are expected to jeopardize their future development in the interest of ‘justice’!

Of course, although perhaps to a lesser degree, what goes for judges goes for public servants since one never stops hearing of the need for an independent public service. However, without skipping a beat the APNU+AFC government upon coming to power, without first establishing the salary review body it promised, immediately comparatively substantially increased the salaries of its ministers. Its claim that the existing salaries of the PPP/C ministers were too low to prevent corruption rightly fell on deaf ears and like so much else in its manifesto, one suspects that this item was placed there because the party suspected that it had a substantial level of public support.

All are agreed that an efficient public sector is a sine qua non for good governance and that public servants must, therefore, be treated fairly and objectively within a predicable framework. At the junior levels there needs to be proper collective bargaining and at the most senior level a predictable environment. Independent emoluments review bodies such as those existing in Trinidad and Tobago, Australia, Canada, the United Kingdom, New Zealand, India, Jamaica and Barbados can be useful elements of such a progressive regime. They could establish remunerations that are fair when compared to private sector and appropriate to attract, recruit and retain persons of suitable competence, provide the motivational and intrinsic value that compensation packages should include and provide compensation packages for top political and managerial offices that promote the efficient delivery of public policies. (Future Notes, SN: 08/08/2012).

A constitutional reform process needs to consider and appropriately locate all of the above considerations. However, most of all it must recognise and insist that apart from crafting a tiebreaker mechanism to end the deadlock in permanently appointing the Chancellor of the Judiciary and the Chief Justice (Future Notes, SN: 24/01/2018), the separation of powers and an independent judiciary do not simply depend upon the physical existence of courts, judges and other legal paraphernalia but on all of these being situated within an operational environment that allows them to flourish.