Our Judiciary
5157 10 May, 2012
Mr. Nandlall: Thank you very much Mr. Speaker. I rise to make my humble contributions to this debate. I begin by concurring with the Hon. Member, the mover of the motion, Mr. Carl Greenidge, that this motion raises a matter of crucial importance, the judiciary and its independence.
As Attorney General Sir, it is incumbent upon me to say that this Administration is and has always been deeply committed to ensuring that the judiciary of our country remains pure, independent and uncontaminated by any form of extraneous influence, including of course, political influence. This administration is very much aware of the history of our judiciary and our country and the pressures which were brought to bear on our judiciary at a particular time in our history.
This administration is very much aware of 1978 Declaration of Party Paramountcy and the subjugation of our judiciary to the paramountcy of the People’s National Congress when they were in power. So much so that the flag of that political party was flown on the apex of our judiciary’s building. We are well aware of that. We are well aware Sir of the aberration of appeals to the Privy Council and the reason behind that aberration. We are aware Sir of the many other attempts which have been documented in many publications, including the one to which Mr. Ramjattan made reference, where a chancellor of this judiciary in 1980, in an address to the Guyana Bar Association of our country said this:
“October 28th 1981,
In Guyana the rule of law is very necessary so as to provide the right environment for socialist orientation.”
You would recall Sir that the party of the day had proclaimed itself to be a socialist party and committed this country to a path of socialism and that is the right of a political party. You have the judiciary that we are so concerned about. Its independence, is now declaring, the Chancellor of the Judiciary is making this declaration:
“To provide the right environment for socialist orientation and nation building which are the dominant preoccupation of Parliament and the Government of the Republic of Guyana. The judiciary is now a necessary and integral part of the political, economic and social systems and the judiciary must look upon itself as having a crucial role to play in this task by ensuring that in the all important field of socialist development, basic value like the rule of law and consequently justice are to be maintained. This is without any doubt one of the most important judiciary functions in contemporary Guyana.”
And then this:
“The high point of the present day arrangement is that while he maintains his judicial independent conscience, the Guyanese judge works in cooperation with the political administration for the advancement of socialism.”
So, Mr. Speaker, this side of the House, we are not unaware of the pressures which have been brought to bear on the judiciary. Those who are now crusading as protagonists of judicial impartiality must know that they are the ones who contaminated the judiciary by politics. We on this side, while they had contaminated the judiciary, used that judiciary as a political weapon against this side, jailing several of our leaders. Sir we are aware of the importance of the independence of the judiciary.
It is since we have come into power those initiatives, one after the other has been taken to ensure that the damage and destruction which have been done to architecture of our judiciary to undermine its confidence, has been reversed. We have been reversing it step by step.
The Constitutional Reform Commission, which brought into force the constitutional amendments upon which this motion is predicated, is part of this administration’s creation. It is part of our initiative to entrench the independence of the judiciary. All the autonomy that article 222 speaks about, and article 222A speaks about, it is we who have done that, Sir - we initiated the Constitutional Reform Commission.
Mr. Speaker: I do not know if any other Member of the House would wish to take you up on that, but certainly all constitutional reforms, coming out of the Herdmanston Accord process, were as a result of a process that involved both sides of the House, and it was not the initiative of one.
Mr. Nandlall: The point I want to make, Sir, is that it was done while this side was in Government. That is what I mean. If I created another impression I wish to withdraw it.
In addition to article 122A, in the Constitution, and article 222, we have amended the Constitution to ensure that the two most supreme officers of the judiciary are appointed only upon an agreement by the President and the Opposition. There is only one country in the entire Commonwealth which has such a position and that is Pakistan. Guyana stands alone in the entire Caribbean as a country with a Constitution that ensures that the head of the judiciary can only be appointed after an agreement is reached by the Leader of the Opposition and the President. That was not there before. That is how we have strengthened the judiciary.
We have amended the Constitution to reside in the Judicial Service Commission powers that it never had before; powers that the Judicial Service Commission now exercises in relation to the appointment of not only of magistrates and certain judicial functionaries, but the support staff such as the Registrar of the Supreme Court, the Deputy Registrar of the Supreme Court, the Registrar of Deeds, the Deputy Registrar of Deeds and many other important functionaries, who used to be appointed by the Public Service Commission, are now only able to be appointed by the Judicial Service Commission – an independent constitutional body. That is how we have affirmed and entrenched the independence of the judiciary.
We recently passed rules to govern the Judicial Service Commission in its operation in the Ninth Parliament. Never before, in the history of our country, did the Judicial Service Commission have rules that govern its functioning – that provide the officials of that body with security of tenure, that say how they must behave, that set out a code of ethics as they perform and discharge their functions. This administration did that only two years ago.
This administration, this country, was one of the first to sign on to the Caribbean Court of Justice Act to ensure that the Caribbean Court of Justice became the highest court in our land, adding to the hierarchical structure of our court system another tier, providing our people with a court resident outside of Guyana and added another forum by which they can challenge judicial decisions.
These are the additions which we have made to the judiciary to ensure that there is independence. The very articles of the Constitution, which the motion mentions, are articles – when one looks at article 164, the entrenchment articles – that receive the highest form of protection in our Constitution. They can only be altered by way of a referendum. That is the type of protection which we have given to this judiciary.
For the last twenty years that we have been in government five or more chancellors – if I can name them: Chancellor George, Chancellor Bishop, Chancellor Kennard, Chancellor Bernard and Chancellor Carl Singh – presided over the judiciary. If any Member of that side is aware, he or she should stand and say so, but I am unaware of a single allegation or complaint made, either privately or publicly, by any of those Chancellors that the judiciary was every starved for financial resources in this country, under this administration - not a single allegation, either from the Chancellor or the Registrar of the Supreme Court who is the Chief Executive Officer and the Chief Accounting Officer. The Registrar of the Supreme Court is here. She can say what pressures, if any, she is subjected to whenever she presents a budget for approval. I spoke with the previous Registrar, Ms. Sita Ramlall, as well. I enquired of her… [Mr. B. Williams: Could you talk to her?] She is the Solicitor General of this country, so she works with me… as to what, if any, pressure was ever brought to her in relation to budgets which she had submitted over the twenty years that she served as Registrar of the Supreme Court, and she told me “no”.
This motion makes some serious allegations, and that is why it is necessary that we treat with this motion very seriously. The judiciary is recognised by this administration as a central pillar to our democracy. It is recognised by this administration as that forum to which our people can go to enforce their constitutional rights, for the settlement of civil disputes and resolutions. It is an institution that ensures that there is public order in our country; it is an institution that is an important adjunct to the creation of the climate which will conduce for investments and economic progress in our country. So the judiciary is most important and therefore when allegations are made that the judiciary’s independence is compromised one would expect, at least, that those allegations would have some type of evidence in support of them.
The third WHEREAS clause states this:
“AND WHEREAS the Supreme Court of Guyana and all other Courts are being treated as a Budget Agency,…”
Then there is a quantum leap.
“…a practice which seriously calls into question the independence and autonomy of the Courts”.
I do not know if because of the fact that judiciary is treated as a budget agency ipso facto results in it being a compromised organisation. That is a most bizarre proposition. One would have expected that the Hon. Member would have listed certain facts, certain pieces of evidence, to support that wild, reckless and unsubstantiated allegation. Unfortunately, upon a peripheral or/ and a profound examination of the motion there is no evidence, whatsoever, to support such an indictment of the integrity of our judiciary and the integrity of the characters of our judges and those who are in charge of the administration of justice.
What is the Member saying? The Member is saying that because the judiciary is a budget agency under the Fiscal Management and Accountability Act it is compliant – that they sing for their supper. That is what he is saying. That is the bold and damaging allegation which is made in this motion, reducing judges to a band of people whose decision depend upon the amount of money they get from the Government. That is the implication of this motion. As the Attorney General, I must deprecate this contention because I am the legal and the constitutional representative of the judiciary. When allegations are made against the judiciary, when the judiciary is sued for allegations of improper conduct it is the Attorney General who is called to answer; it is the Attorney General who is responsible to this National Assembly for the conduct of the judiciary; it is the Attorney General who signed on to approving the budget of the judiciary. Therefore, these allegations not only indict the integrity of the judiciary, but they indict also the integrity of the Attorney General. [Mr. B. Williams: Let us hear what we are saying about the Attorney General.] You must not come to the National Assembly with these types of allegations which are unsubstantiated.
Another point that I want to raise is this: This is a motion which seeks an amendment of an extant legislation. The Parliament of this country is now being asked to review its own legislation with a view of amending it. The only review powers which exist in this country, in relation to legislation, reside with the judiciary. There is no power vested in this Parliament to conduct a review of its own legislation. That is a power which the Constitution has resided in the judiciary. If an amendment has to be effected to an extant legislation then one has to bring the amendment in the form of an amendment. It is not brought in the form of a motion. The amendment is brought and then we vote to it. This motion, this exercise, is superfluous; it is unnecessary; it is misplaced; it is misconceived; it is wrong and it is an abuse of parliamentary process. If Mr. Greenidge wanted to amend it all he had to do, with his thirty-three votes behind him, was to bring the amendment and we would have been be finished – we would have amended it and that would have been the end of the matter. But here it is, Mr. Greenidge initiated an exercise for political grandstanding. You go to the court to review legislation. You do not come to the National Assembly to review legislation. The shadow Minister should have advised Mr. Greenidge and Mr. Ramjattan ought to know better.
Let us go to the motion itself. Before I go I wish to deal with the legislation. I hear a lot of negative comments being made about this legislation. I have looked at the counterpart legislation of Jamaica, Trinidad and Tobago, Barbados and the model used by the Eastern Caribbean countries and, having done the comparison, this legislation stands out as one of the most advanced of its kind in the region. This is groundbreaking legislation for the purpose of public accountancy and financial management. It repealed a 1962 anachronistic and archaic legislation, which the Opposite Members are following, and had the judiciary attached to it. That is what they are complying with. It was repealed by this Act, a 1962 Act. Look, it is here: “Then Financial Administration and Audit Act are hereby repealed.” I am telling them that this is the modern landscape; this is the modern infrastructure and it stands high and way above those which exist in the region.
My friends are advocating a deletion from the Schedule of the judiciary as a budget agency. [Mr. Ramjattan: Is not that was done for the Auditor General Office the other day?] The difference between the Auditor General’s Office and this is that the Auditor General’s Office has an Act that sets up a financial infrastructure - how it is to do its budget, how it is to regulate its financial affairs, how it is to manage its financial affairs. There is no such legislation or framework for the judiciary. When the judiciary is deleted from this Act, then there is a vacuum - there is then no framework within which to govern the judiciary and the way it finances itself. That cannot be a position that we are advocating, as a Parliament. The judiciary with all of its independence cannot be aloof of the governmental structure of the country. It is a public institution, it is funded by taxpayers’ money and it must be accountable to the people of this country. That is why in every country in the Caribbean there is a Minister with responsibility for the judiciary in the Parliament. My honourable friend is reminding me that that is the reason why this National Assembly passed, in the Ninth Parliament, the Time Limit for Judicial Decision Act, because we recognise, as a Parliament, that the judiciary must be accountable. It does not reside in isolation from the rest of the society. With all of the aura with which we want to imbue in it and all the independence to which it is entitled to, it remains an organ that is funded by public money; it remains a branch of Government; it remains a creature of the Constitution, and therefore it is accountable to the people of this country. When we delete it from this Schedule then there is no framework. I heard my friend saying “they must present it”. Who will present it and where will it be presented to?
This motion is suffering from so many flaws. When one goes through the Fiscal Management and Accountability Act… For example, section 11 outlines in great detail how a budget should be prepared; it outlines the matters which must be taken into account when the budget is prepared; it outlines a time schedule by which this budget must be prepared; it tells you what factors must be taken into account when a budget is prepared. So all of these things are now regulated by this Act. When the judiciary is deleted from this Act, the Act does not apply to it anymore. Three lines in the Constitution now apply to it. I will deal with what the Constitution states. There will be a judiciary now that is completely bereft of any form of structure or any forum of accountability. [Mr. Ramjattan: You better go and tell… inaudible] I can tell him that, because that is what you are doing. You are setting him up. You want to put the judiciary in chaos.
The current position is: In August of the year before the Registrar of the Supreme Court meets with the Ministry of Finance and a lump sum figure is arrived at, as to what allocations are to be made to the judiciary for the next year. That is a result of a detailed discussion, and when $2.2 billion is agreed upon, then the Registrar, as the Accounting Officer, goes back and, in consultation with the judges and the magistrates, and other official intra the judiciary, prepares a budget without any injection of the executive in relation to how that $2.2 billion is spent. The remuneration package is unalterable even by this National Assembly, because the judges have security of tenure which extends to the remuneration. They have security of tenure.
All of this grandstanding that is taking place, about judges are going begging in hand, is absolute inaccuracy. Nobody in this National Assembly, whether there is majority or not, can interfere or vote against the remuneration of a judge because it is entrenched as a protective provision in the Constitution.
These are the issues. When the Registrar goes to the Ministry of Finance and that lump sum figure is arrived at, the budget is then created and that budget is sent to the Attorney General simply to be signed… [Mr. Nagamootoo: It is to be rubber-stamped.] It is to be rubber-stamped. Then it is transmitted to the Ministry of Finance. That is the extant procedure.
The reason why the executive has to continue to have a connection with the judiciary is that there must be someone in this National Assembly who will answer for the judiciary. When we go into the Committee of Supply who is going to answer to the questions which are being asked. I then would be in the invidious position of being asked to answer questions about an entity that I have absolutely no connection with, and with that I am the mouthpiece with no responsibility whatsoever. That is an untenable situation. That is an untenable position. The judiciary cannot come here to defend itself; the registry cannot come here to defend itself, so someone must be here.
Article 222A, (a):
“the expenditure of each of the entities shall be financed as a direct charge on the Consolidated Fund, determined as a lump sum by way of annual subvention approved y the National Assembly after a review and approval of the entity’s annual budget as a part of the process of the determination of the national budget.”
This is the position which obtains now. The Minister of Finance presents the budget which includes the budget of the judiciary and it is voted upon. It is the subject of scrutiny in the Committee of Supply and as a result of that process, or at the end of that processes, it is voted upon by the National Assembly. It is approved by the National Assembly so there is no violation in the extant procedure in relation to 222A, (a).
Let us deal with 222A, (b):
“each entity shall manage its subvention in such a manner as it deems fit for the efficient discharge of its functions, subject only to conformity with the financial practices…”
That is the position now. The budget is given to the Registrar, as the Chief Accounting Officer, and her unit which was created – and there is an accounting unit which was created – and that is what obtains now. They are in complete autonomy with the management of their finances.
Article 222A, (c):
“the terms and conditions applicable to grants and donations destined for entities shall be approved by…”
Well, that is not relevant.
The position which obtains now is in complete compliance with the Constitution. In fact, there is no mechanism in place to allow for any other system to be put in place. When one examines the countries of the Commonwealth Caribbean – and examine them - every single country has an identical position to the position in Guyana – all of them.
In fact, Sir, as a result of a controversy which arose in Trinidad and Tobago in the year 2003, the Trinidad Attorney General brought in Lord Mackay, the former Chancellor of the Judiciary in England, and he did an examination of the financial structure of the judiciary in Trinidad and Tobago, a structure which is similar to ours, and he found that there were no malpractices. He found that there was no financial dependence by the judiciary upon the executive that in any way compromise the independence of the judiciary.
Mr. Speaker: You have one minute remaining, Hon. Attorney General.
Mr. Nandlall: Sir, in conclusion, this motion, I cannot support it. It is unnecessary; it is wrong; it is superfluous; it is waste of time and it is an abuse of parliamentary process.
Thank you very much, Sir. [Applause]
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