The Public Procurement Commission: Can a member dissent? By: Mohabir Anil Nandlall, MP

December 20, 2017 by · Leave a Comment 

By: Mohabir Anil Nandlall, MP

The Public Procurement Commission (PPC) is a constitutional body established by Article 212 W of the Constitution. The Constitution declares that this Commission “shall be independent, impartial and shall discharge its functions fairly”. It consists of five (5) members nominated by the Public Accounts Committee (PAC) and approved by no less than two-thirds of the elected members of the National Assembly.

The functions of this Commission are manifold. They are listed in Article 212 AA. Its core functions include; monitoring and reviewing the functioning of all public procurement systems to ensure that they comply with the law; investigating complaints and cases of irregularities and proposed remedial actions; crafting and approving rules and procedures for public procurement and to monitor and review all legislation and report the need for new legislation in the area of public procurement.

Recently, the PPC completed its first major task of investigating/ reviewing an irregular public procurement transaction, that is, the controversial purchase of over $600M of pharmaceuticals and drugs for the Georgetown Public Hospital Corporation (GPHC) without the resort to any form of public procurement.

It is common knowledge that the PPC has completed its inquiry and has presented a report to the National Assembly, as it is required to do in certain special cases, under the Constitution. It is also public knowledge that one of the five members of the Commission has differed from the others in his interpretation of the events and in his findings and recommendations. It is reported in the Chronicle newspapers that he has prepared a “Minority Report”.

This has apparently caused some disquiet within the Commission. It is also reported that this dissenting opinion was not included in the report of the Commission. The reason proffered is that a dissenting opinion is not permissible.

As a result, the issue of whether a member of the Commission can lawfully and properly submit a dissenting opinion has arisen.




The fact that this Commission is “independent and impartial” necessarily means that outside of the Constitution, which creates it, this Commission is self-regulatory. Therefore, it can formulate its own rules of procedure to govern it. The Constitution is silent on these procedural matters. As far as I am aware, the PPC has not yet formulated any procedural regulations to govern the way it is to function. Therefore, currently, there is no prohibition against a member of the Commission expressing a dissenting opinion or preparing a report, which is inconsistent with a report of the other members.

It would be advisable that the PPC formulate its own regulations, which will guide its future work, both in terms of procedure and substance, as soon as possible. It is of fundamental importance that those rules be intra vires and consistent with the Constitution and any other law governing the PPC. If not, those regulations will be ultra vires, unconstitutional and unlawful.

Significantly, these regulations cannot be designed, either in their letter or in their spirit, to compromise or in any manner whatsoever affect or interfere with the independence and impartiality of the Commission. I must emphasize that the impartiality and independence with which the Constitution imbue this Commission is not confined to the Commission as a unitary whole but applied with equal force to each of its constituent part. What this means is that not only is the Commission as a body independent and impartial vis-a-vis extraneous influences, it is equally intrinsically independent.

Therefore, each individual member of the Commission is independent of the other and is entitled to hold views and opinions which are independent of other Commissioners. In other words, even the chairperson has no authority to silence the view of any Commissioner; neither do four commissioners have the authority to silence the view of one. In the end, therefore, with or without regulations, a dissenting view or a minority report would be permissible.

This same principle applies in and to the Judiciary. The Judiciary is not only independent as a unitary whole against extraneous influences but each judge enjoys individual independence from other judges in the discharge of his or her judicial functions.  This is the reason why in a Court comprising of more than one judges, there is sometimes a dissenting judgment. It is perfectly proper and lawful for same to obtain and this practice dates back centuries.

Therefore, any intended regulation that would attempt to prohibit a dissenting view from a member of the Commission would be unconstitutional and unlawful.

The PPC is a public body and its work is public. Regulations, which are designed to cloud the work of this Commission in secrecy, would again, run afoul of the Constitution. Like any other public organization, some aspects of its work at some particular stage may require some degree of confidentiality, but that would be more to protect the integrity of the process rather than shield its work from public scrutiny.

Save for those exceptional circumstances, the work of the PPC should be as transparent and accountable as possible. After all, a large part of its very mandate is to investigate transactions because of their lack of transparency and accountability. It would be an ironic tragedy if it is to be accused of the very wrong it was established to investigate.

Key Strides in Guyana’s Supreme Court of Judicature

September 25, 2017 by · Leave a Comment 

By: Chancellor of the Judiciary (Ag),
Justice Yonette Cummings-Edwards

July 28, 2017 was a proud day for the Judiciary of Guyana. All the various divisions of the High Court are now housed in one compound – the Land Court has come home, so to speak, to take its place next to the new Family Court and other divisions of the High Court.
This new wing comprises three Civil Courts and the Land Court.
The Land Court, being a division of the High Court, has come full circle. It was first housed in the Maraj Building. Then it went to share premises in Brickdam with the offices of the Police Complaints Authority, Office of the Ombudsman, Public Service Appellate Tribunal, the Bar Association and the Guyana Association of Women Lawyers.
It has finally found its way back home, like the prodigal child.
This allows for easier physical access to justice for the litigant and Attorneys-at-Law, easier management of the court and the registries and saving of expenses.
The idea of an addition to the then existing High Court building, the representation to the Minister of Finance for funding for construction, the liaison with the engineering consultants and the general oversight of its construction, was not ours. The Acting Chief Justice and I can lay no claim to fame in that regard.
The vision and its ultimate fruition belong to none other than the Former Chancellor of the Judiciary, Justice Carl Singh.
This new wing will accommodate courtrooms with modern technology, as we are hoping to have in the not-too-distant future, an E-Judiciary.
An E-Judiciary system would allow court documents to be filed, served and extracted electronically. Legal professionals would enjoy easy and convenient submission of court documents and online access to active case files using intuitive electronic filing (eFiling).
At the same time, judicial officers can enjoy improved efficiency and effectiveness in handling court cases and schedules, with features such as Court Case Management System. Countries such as Singapore, UAE, Namibia and Mauritius have implemented E-Judiciary systems.
This has led to the faster disposition of cases in those jurisdictions.
This is indeed a new era for the High Court in Georgetown. We see this new building as the start of a modern era involving changes which will improve access to justice.
I hasten to add that our beautiful Victorian architecture and Tudor architectural style will not be destroyed in the process.
Being under the watchful eyes of the National Trust, historians and aficionados of certain types of architecture and antiques, and having the love for it ourselves, we have always been careful in that regard.
I wish to note that the new physical structure is accompanied by the new Civil Procedures Rules 2017 and Family Proceeding Rules 2016.
These new regimes have brought Guyana into the era of case management and direction hearings which, at their core, are designed to eliminate the steps that are associated with delays and to make judges the drivers of pace of litigation.
The new civil procedure rules entails faster disposal of cases. The time line for first hearing of a case is now set between two and 28 days.
Since these new rules have been implemented (within the last 5 months), 1,258 cases were filed.
Out of that number, almost half of those cases have been disposed of.
This is the context in which we must view the new structures that have been added to the juridical landscape of the High Court. This demonstrates our commitment to the overall improvement of the administration in the High Court as well as the belief that, as a modern judiciary, it is critical that the public is kept informed about important aspects of the work of the judiciary.
To us, public confidence in the judiciary is an imperative.


(Article taken from the Guyana Inc. Magazine Edition 27)

“Night Court” Life Imitating Art

November 11, 2016 by · Leave a Comment 

As previously noted in an earlier contribution, the month of October marks the anniversary of the admission to practice of most Attorneys-at-Law who would have graduated from the Hugh Wooding Law School. For the author, as part of a group of nine attorneys-at-law admitted to practice in 1996, we recently gathered to celebrate twenty years at the Guyana and Caribbean Bar. Our October reflections surround, not only what we would have achieved for ourselves, but also what we may have observed in the administration of justice, in Guyana in particular.

Twenty years of practice in Guyana has seen new Family Procedure Rules, the Caribbean Court of Justice (CCJ) as our final Court of Appeal and improvements in the infrastructure of most courts. We have also not seen the appointment of Senior Counsel, we are likely to see new rules of court, technology has not made its full impact, and after years of discussion we have seen the commencement of night sittings of the Magistrate’s Courts in Georgetown. There are no expressed reflections on the glacier-like pace of change in the legal system, save to acknowledge that with the constant increase in temperatures in Guyana, the pace of change may increase. This contribution discusses a recent introduction to the administration of justice in Guyana, the night court. It proceeds to address the reality, make a few respectful suggestions followed by a short conclusion.

The reality
The reality of night court; is here, sittings officially commenced on the 10th October, 2016. For those of us who were sufficiently cognizant in the 80’s and 90’s, the words ‘night court’ cause an immediate mental reference to a television situation comedy which bore a similar name. For those of a younger generation, Google and Youtube provide useful sources of information on the situation comedy.
The linkages between legal practice and television have always been present with varying impacts. There are the old shows of Perry Mason, Matlock, L.A. Law which were present in the 1990’s. Leading to the current wide menu of shows would have been shows such as Boston Legal, the Practice and Ally McBeal, to name at least three. The current crop of shows include: Suits, Conviction, Bull, and How to Get Away With Murder. There are even complete television networks devoted to court, demonstrating Court presided over by judges deciding real cases for a television audience. You may not remember the faces but you may know the names: Judge Judy, Judge Brown, Judge Mathis, etc.
With the label of a situation comedy, which ran for over 200 episodes, what are we likely to see from the night court in Guyana? There is a cardinal rule of cross-examination, never ask a question to which you do not know the answer. Though several questions arise, there are no questions posed here regarding the night court in Guyana at this time. The right to cross-examine is therefore reserved. There also exists the crude and cultured way of advancing one’s case to a witness. One is to say, “I suggest to you that ……” the other is, “I put it to …..” no further comment on which is which.

Respectful suggestions
For the author, the following is respectfully suggested regarding the advent of the night court in Guyana.
Despite the portrayed glamour law and legal practice are not television satire. There are real players with real roles. We note the persons who have been selected to perform the roles of temporary magistrates. It is trusted that the hard work is exercised and recognized and that there is little slippage when moving between the bar and the bench;
There is nothing funny about the law and the delivery of justice, though there are many lawyer jokes and a few moments of humour depending on the Court and the Lawyer. Night court should not be seen as the platform for the humor which is characterised in the old and new television shows, despite the presence of a live (court as opposed to studio) audience;
Night court should not be another show to be cancelled after a few seasons of successful episodes, consideration may be given to more permanency in the framework;
Whatever is done in the dark eventually comes out in the light of day, not because it is night, justice must still be seen to be done as it ought to be done;
In the context of a labour market, there has been generally a difference between daytime rates and nighttime rates. Law being one of the oldest professions in the world, there should be an expectation of society to pay higher fees for nighttime service;
The television show Night Court launched the successful acting careers for members of its cast. Similar success may be possible in the Guyana context;
Change is indeed slow, but when it occurs it should be given the opportunity for develop momentum.

Time will be part of the verdict of the night court effort in Guyana, the word experiment was deliberately avoided. Whether reflection on twenty years or otherwise, the words of Henry Wadsworth Longfellow come to mind, “The heights by great men reached and kept were not attained by sudden flight, but they, while their companions slept, were toiling upward in the night”. As the night court has started its momentum, we will be watching.

Expectations of the Judiciary for 2016

August 9, 2016 by · Leave a Comment 

With the changing of the administrative and judicial guard in the High Court of Guyana, an opportunity is presented to reflect on the resolutions, expectations for the administration of justice and practice of the law for the year 2016 and onward.
The reflections herein have not been tested for consensus among the colleagues of the writer, but come from some exposure to several in the practice of the law.
For 2016, the expectations are not lowered as suggested by a skit on an old television show entitled “lowered expectations”. In fact, the expectations are cautiously and positively optimistic in the following areas: leadership and following; decisions and substance; and attire and human senses.

Leadership and following

In many contexts the most important person to cause a revolution and change has been the first follower. This can be discerned from a YouTube video entitled “leadership lessons from a dancing guy”, worth a Google or a Bing.
In the present context of the administration of justice in Guyana, it is suggested that such a situation does exist. We have a third follower as a female Chief Justice, a follower as a Caribbean trained Chief Justice and another follower with the surname Cummings as Chief Justice.

With the opportunity to create a revolution of change in the legal system in Guyana, there are expectations.
It is interesting that justice is said to be blind. It is reported that a blind man once said to a deaf man who was not exactly listening “we shall see”. As the whole of Guyana continues to wait to see, we in the profession hope to see:
• A reduction in the backlog of matters;
• The continued timely granting of applications in relation to the estates of deceased persons.
• A revised approach to applications for and granting of adjournments.
• The practice as attorneys-at-law and not attorneys-at-fact. Facts should be properly contextualised by counsel and supported by relevant and applicable law.
• More reading and writing and less talking, additional emissions of hot air add to the current climate challenges facing our country.

Decisions and substance
For those charged with the delivery of justice, there are visions of more written decisions and fewer decisions in writing. For some it may be suggested that the previous sentence is a distinction without a difference, there is, however, a difference. A decision in writing is exactly that: a decision on an issue without the support of reason, precedent or authority. On the other hand, a written decision should build on the fundamentals of law: facts, issues, relevant law, application of the law and conclusions and should also be timely. Further I say not on the subject.

Attire and human senses.
From those that are charged with the delivery of justice there may less need for the wearing of sunshades in Court. At the outset it must be established that this is not an attack, such as the sun on the follically challenged. There is an old song with the words “life is so bright that I have to wear shades”. It has been observed that the attire, both male and female attorneys-at-law, have drifted away from less sober colours, to bright shirts and ties for the males and other variations for females.
The causal effect demonstrates a direct correlation among senses of sight, speech and hearing. Counsel would be seen, could even be speaking but not heard by the Court. The sights and sounds are so out of place that the hearing of the bench may be impaired. So the conflict is resumed, presence at the bar but in sober colours. However, we should be aware of the subtle revolution of socks by the males. The most recent development, females, finger nails and nail polish. Comment is reserved due to lack of expertise.

Concluding thoughts
So here we are, some of the old, more of the same, the hope for better and a 2:00 am bar curfew. The bar is still open for business but, we shall see.

Remarkable changes in the Judiciary since Guyana attained Independence

July 28, 2016 by · Leave a Comment 

It is well accepted in modern civilization that a democratic society should enjoy three branches of government; the legislature, the executive and the judiciary.

The judiciary of Guyana consists of the Chancellor, the Chief Justice, the Justices of Appeal, the Puisne Judges and the Magistrates.

The selection of all members of the judiciary, except the Chancellor, is done by the Judicial Service Commission. The Chancellor is selected by agreement between the President and the Leader of the Opposition.

The members of the judiciary and their functions are guaranteed and protected by the Constitution, statutes and conventions; all designed to guarantee their independence and to ensure the all legal disputes in the Courts of Guyana are adjudicated upon by fair, qualified and unbiased individuals.

The judicial system of Guyana was inherited from the British who had installed their judicial system whilst Guyana was a colony of England. The system of laws administered for more than 150 years before independence, in the then British Guiana, remains largely the same. Guyana’s judiciary is no different, it is obviously made up of different personnel but it is based on the common law system.

The judiciary after independence was and remains based on the structures, conventions and procedures of the English judicial system that had hitherto been in existence in British Guiana before her independence.

The advent of independence for Guyana on the 26th May 1966 saw changes in its judiciary and the changes were marked by significant events.

Immediately upon independence, there was the introduction of the position of Chancellor as the head of the judiciary. This was a noteworthy change. Prior to independence, the head of the judiciary was the Chief Justice.

After independence this change meant that the Chief Justice became an ex-officio member of the Court of Appeal but was charged with the administration of the High Court and its judges; and was engaged principally in the High Court.

The newly created post of Chancellor, as head of the judiciary, replaced the Chief Justice as the head of the Court of Appeal. The Chancellor was also responsible for the administration entire judiciary (except for those exercised by the Chief Justice in the High Court) and was engaged principally in the hearing of appeals in the Court of Appeal with the other Justices of Appeal.

There was much public debate at the time of the change to the system to appoint a Chancellor; the detractors from the new system argued the change was intended to place at the pinnacle of the judiciary a person agreeable to the Government of the day.

This was principally because with the creation of the post of Chancellor the Chief Justice of the day was not elevated to that position but a different judge (who was previously a Chief Justice) was appointed to be Chancellor administratively superior to the then Chief Justice. However, the change made was never reversed and maintains up to present time. Guyana remains the only Commonwealth Caribbean State to have such a system and to have changed its judiciary in this manner.

The second significant change came with the abolition of appeals from Guyana to the Judicial Committee of the Privy Council (Privy Council). This was as significant change that had adverse effects on the administration of justice in Guyana.

The pre-independence guarantee by England was to provide at no expense the apex Court for the hearing of appeals on all legal disputes in Guyana. The Privy Council was and still is the final appellate court for many Commonwealth countries.

The removal of the Privy Council effectively removed a tier of appeals from the judicial system. The abolition of appeals to the Privy Council was only possible by an Act of Parliament, an Act which was passed in the Guyana Parliament by a unanimous vote. This mean both the Government and Opposition of the day approved the abolition of Privy Council appeals.

Notwithstanding the unanimous approval of Parliament the decision has always been plagued by assertions that it had political undertones to allow the Government of the day to manipulate the judiciary.

However, the reasons advanced were principally centered on principles of sovereignty and the nationalistic fervor. The desire that legal disputes in Guyana be adjudicated upon by Guyanese judges is an attractive one, especially for a nation that had long been recognised to having produced distinguished jurists.

It is fair to say that with the passage of time the decision to abolish Privy Council appeals was not to theoverall benefit of Guyana mainly because it lead to a period of decline in the judiciary as a branch of Government.

Thirdly, the change that represented the lowest point in the Guyana Judiciary, occurred when laws and declarations were made to the effect that the Court of Appeal was an organ of the political party of the Government of the day. This was commonly known as the period of “party supremacy”.

During this time it was reported that the political party flag of the Government replaced the Guyana Flag at the Court of Appeal building. This did not last and was reversed in the years that followed.

It has been argued that during this period there was a decline in the Guyana Judiciary that undermined public confidence in the judiciary, which, although much improved at present, has not yet been totally erased.

Fourthly, the Caribbean Court of Justice became the final court of appeal for Guyana by the passage of an Act of Parliament in 2004. It was monumental change. It not only meant that non-Guyanese judges were having the final say on disputes in Guyana (similar to the position that existed at the time of the Privy Council), but it meant the judicial system now had an additional tier; a tier that hitherto did not exist since the removal of the Privy Council.

It is fair to say that the Caribbean Court of Justice has done much to elevate the judicial system in Guyana and has contributed to the restoration, in no small part, of public confidence.

In conclusion, it is fair to say that over the past 50 years, the judicial system of Guyana has had it highs and lows; but it has at each misstep corrected itself and improved to serve the nation better.

At present, the persistent reports of case backlog and sufficient personnel are not without merit; but there has been small improvement in recent years. The judiciary itself is still grappling with the change enacted for the appointment of its highest officer, the Chancellor, there being only an acting appointment for the past seven years. There is much to be done to improve the judicial system and the judiciary but Guyana is learning slowly and improving.



Writer Profile

Sanjeev J. Datadin is a practicing Attorney-at-Law in Guyana since 1997 in the areas mainly of commercial law, public law, civil law and oil and gas law. He is a graduate of the University of Aberdeen (LLM), the Hugh Wooding Law School and the University of Guyana. He has practiced in Guyana and the Caribbean and additionally has the distinction of practicing in the Judicial Committee of the Privy Council, the Caribbean Court of Justice, he Court of Arbitration for Sport (Lausanne, Switzerland), the Maritime Arbitration Chamber of Paris (C.A.M.P), International Cricket Council Anti-Doping Tribunal.


The Separation of Powers Doctrine

January 8, 2016 by · Leave a Comment 

Nations all over the world, in their Constitutions, regard the doctrine of the separation of powers as a guiding light. The framers of the Constitution of the United States of America called the separation of powers doctrine the sacred maxim of free government. Chang JAin theChue v AG (2006), pronounced that “…the principle of the separation of powers underlies the very structure of the [Guyanese] Constitution and inheres in its contents”.

The term was coined in the 17th century by Montesquieu, a French jurist, who was of the view that for liberty to exist separation of powers is necessary. In modern times, the separation of powers doctrine has become a unique aspect of democracy, a principle of good governance, as well as an inseparable part of the rule of law.
Whereas the concentration of power in the same hands would give rise to gross unaccountability and eventually tyranny, the separation of powers is the division of the state into three main branches: the executive which is the Government, the legislature which is Parliament and the judiciary which comprises the courts. This achieves, albeit imperfect, a balance of state powers, with mechanisms for cooperation and a system of checks and balances.

The Constitution of Guyana contains no provision explicitly declaring that the powers of the three branches of the Statemust be separated. However, in Chue v AG, it is stated that in Guyana, a democratic State, the separation of powers exists among the executive, legislature and judiciary and is implicit in the structure and in the contents of its Constitution.
Indeed, Article 99 of the Constitution vests executive authority in the President, who may also exercise this authority through his officers whereas under article 65(1) of the Constitution, Parliament must make laws for peace, order and good government. And notably, Article 122A of the Constitution mandates that the judiciary exercises its functions independently from control and direction of any other authority, whether political, executive or otherwise. All courts must be administratively and financially autonomous or self-governing (Articles122A and 222A).

The Executive: Government
The executive governs the country. It makes decisions for the country’s well-being by making and carrying out policies. The executive includes the President, the Prime Minister and the other Ministers of the Government.They conduct the day-to-day affairs of governance.

The Legislature: Parliament
Parliament makes the laws of the land. Parliament is made up of the National Assembly and the President. The National Assembly comprises 65 members who were elected by the citizens of Guyana. If the Speaker is a member of civil society (rather than a member of a Party’s list) then he, too, is a member of the National Assembly, as is our current Speaker, the Hon. Dr. Barton Scotland, CCH, MP. His Excellency’s Ministers sit in Parliament. In this way there is some overlap between the executive and the legislature.

The Judiciary: The Courts
The judiciary comprises the courts which are presided over by judges and magistrates of varying rank. They ensure that the legislature, the executive, and general society uphold the law by interpreting and applying the law. Above all laws is the Constitution, of which the separation of powers is part and parcel. Any law made by the legislature which is repugnant to or conflicts with the Constitution can be declared void and struck down by the High Court. The fundamental rights of persons guaranteed by the Constitution are safeguarded by the Courts so that the executive and the legislature cannot adversely interfere with these rights. Any unlawful act done by the executive can be challenged in the Courts who may then intervene.
An independent judiciary is one of the grand pillars of a democracy. In the exercise of its powers, the judiciary is constitutionally insulated from the improper influence or any control by the executive and legislature.

There are many instances where in effect a branch of the State relies upon, supervises, or affects another in a subtle way. Some examples are as follows:

The Law-Making Process
Take for instance how Parliament makes a law: First, the Bill – as a proposed law is called –must be approved by a specified majority of members of the National Assembly. The kind of majority required varies depending on the impact of the Bill, if any, on the Constitution. Second, the Bill must be approved or assented to by the President; and third, it must be published in the Official Gazette. The President can withhold his assent to a Bill approved by the National Assembly thereby effectively preventing it becoming law. The President thwarts the intent of the legislature when he withholds assent, which though constitutionally permissible, could adversely affect the aspirations of the people.

The Appointment of Judges
The Judges of the High Court are appointed by the President acting on the advice of the Judicial Service Commission. The Chancellor and the Chief Justice are appointed by the President after the Leader of the Opposition has signified agreement.

Public Expenditure
Each year, the National Assembly must approve the budget, prepared by the executive, for spending for the next year: the National Assembly is akin to the gate-keeperof the national treasury. The Public Accounts Committee, a standing committee of the National Assembly that is chaired by an opposition member, can examine the accounts showing the appropriation of the sums approved by the National Assembly to meet public expenditure and such other accounts laid before the Assembly.
Here we see the system of separation of powers at its finest where the National Assembly scrutinises, checks and balances the spending of the executive, ensuring that the treasury of the State is not abused.

It has been argued, and this writer must concur, that absolute or total separation of powers is neither desirable nor possible. In fact, the logical extension of this argument taken to its furthest would mean that our nation would have distinct rulers. And how can we serve two masters at any one time, let alone three? Absolute separation would thrust conflicting branches of the State into deadlock and restrain the momentum of national development.
At various levels, for an efficiently functioning government and society, there must be both clear separation as well as some necessary interdependence between the branches of the State. Absolute separation is a chimera and not the intent of the Constitution. The judiciary has a supervisory task to ensure that the other branches, as well as itself, confirm with the law.
The legislature must hold the government executive accountable. The executive must ensure that the infrastructural apparatus of all of the branches of the State are in consonance with the rule of law and do not offend against the principle of separation of powers to an unwarranted degree. And so the unending circle goes on, as each safeguards the other.

The reasonable Guyanese neighbour?

December 16, 2015 by · Leave a Comment 

Prepared by Teni Housty, Attorney-at-Law, LL.M.; MBA

Every year, in October and November, the numbers of the members of the legal profession increase. For the new members of the bar, admission is a time to communicate and state aspirations and intentions for a distinguished career in the law. For presenters of petitions, it is a time to provide guidance and advice on elements of the practice of law. For the admitting Judge, there is advice on the standards expected of a new practitioner and lamentation on the decline of elements of the profession. However, in most situations, there is silence on the reference to the basics of law taught in the first years of university studies. This contribution provides a reflection on two of the first principles in law which appears to be absent in Guyanese society today: The Neighbour and The Reasonable Man.

The Neighbour
The first principle is based on the extension of the second of the Greatest Commandments found in Mark 12:31 of the New Testament of the Holy Bible that:
”And the second, like it, is this: ‘you shall love your neighbor as yourself’. There is no other commandment greater than these.” (Emphasis added).
In Guyana today, it is humbly suggested that that love has been lost. When placed in the context of the law we reflect on the case of Donoghue v Stevenson [1932] AC 562 (First Year Law of Tort – The Snail and the Ginger Beer case) and the immortal words of Lord Atkin at page 580:
“The rule that you are to love your neighbour becomes in law, you must not injure your neighbour…. Who then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”
Who then, in Guyana, is my neighbour? As the response is considered, it must be observed that in Guyana we like to “Guyanese” certain concepts.

The reasonable man
This leads to the other foremost principle we learn in Law: that of the reasonable man. As English Law is the basis which forms part of the foundation of Guyana’s legal system, we are taught that the reasonable man is “the man on the Clapham Omnibus.” It has been observed that in the Gray’s Law Dictionary:
“The Man on the Clapham Omnibus, to a lawyer, is synonymous with the pinnacle of reason in humanity: an ordinary London transit rider as representative of all rational thought and action”.
To make this text applicable to your society you must add some context to it. So how do we, as Guyanese, embrace the traditional notion of the neighbour? The issue begs more complex and combined questions: who then is a reasonable Guyanese neighbour; and what are the rational thoughts and actions of the Guyanese East Coast minibus passenger?

The reasonable Guyanese neighbour
When the response is framed in the mind of any member of the Guyanese society, the answer will vary. It is not for the author to suggest the response; there are, however, certain glaring instances in which we are not the best neighbours, and rational thoughts as well as actions escape understanding. These might be a few:

  • road accidents of all kinds;
  • littering;
  • excessive noise;
  • passing a fallen person in a street and failing to render assistance;
  • the lack of timely responses from emergency services;
  • peeping and filming instead of helping (as some smartphone users do);
  • misapplication of principles of allocation of public and private finance; and
  • for the self-contorting, forgetting where you have come from and the duties owed to society as a whole.

There is a Crop Over song which was sung by Lil Rick in 2012 which says that “I like muhself real bad.” In Guyana, while we like ourselves, we should not forget that our neighbour is our friend, and let us have a fair concept of the Guyanese neighbour in our society. Share and spread the love.

What is Meant by the Rule of Law

November 16, 2015 by · Leave a Comment 

Ananda Devi Dhurjon, LLB, LLM (UWI), LLM (Lond) – Principal Parliamentary Counsel

We often hear politicians and commentators speak of the ‘Rule of Law’. Its phraseology breeds a variety of interpretations, yet everyone agrees this must be a good thing. But this is no hollow cliché; indeed our Constitution gives it pride of place in its preamble that we “forge a system of governance…to develop a viable economy and a harmonious community based on democratic values…and the rule of law.”
A constitution’s preamble animates its provisions, and in some circumstances, one can have regard to it when interpreting its articles. The preambles of the Constitutions of Dominica, Trinidad, Belize and Barbados all state that their respective peoples recognize “that men and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law”.

What is it?

The meaning and significance of the term has evolved much since its genesis in 1885 when Professor Albert Vinn Dicey coined the term. To understand the meaning of the ‘Rule of Law’, I would rather start by saying that it is a short phrase out of which many ideas spring forth. It requires that fundamental rights should be enshrined, that the law must be clear, that public officials’ decisions must have good bases. It requires that there must be universal entitlement to the law and universal accountability to it too. It encompasses concepts that are indispensable to a democracy such as the separation of powers, natural justice, procedural and substantive fairness. The rule of law is a compendium of these principles. The following are some of the core values that I prefer to now explain:

Fundamental Rights

he Constitution asserts a large variety of fundamental rights such as the protection of the right to life, the right to work, freedom from discrimination, freedom of expression, and so forth. Too few Guyanese know that one of the finest innovations of the Constitutional Reform Commission of 2001 was to constitutionally provide that six international rights conventions have force of law in Guyana – take for instance, the Convention on the Rights of the Child. What’s more, our Constitution provides for four Rights Commissions to “strengthen social justice and the rule of law” to review human rights’ policies and investigate complaints, among other things. These are the Human Rights Commission, the Women and Gender Equality Commission, the Indigenous Peoples’ Commission and the Rights of the Child Commission. In enshrining these rights constitutionally, we thereby removed the possibility of their unreasonable encroachment and established an irreducible minimum of dignity for all citizens, otherwise the rule of law would be undermined.

Certainty in the Law

Laws must be clear – clearly drafted if it is to be legislation, and clearly articulated if it is to be judge-made principle. What tyranny would there be if one could break a law without anyone reasonably knowing of its existence? In fact, vague laws are likely to be struck down by the Courts for unconstitutionality. One should be able to foresee the consequences of his actions. At the same time, once the law is clear, as the maxim goes, ignorance of the law is no excuse. Part of the requirement for clarity is the need for there to be consistency in the law’s principles as set out by Courts; the law must be predictable. This is why courts’ are guided by their previous decisions – this is the principle of stare decisis – but must yet set new precedent when justice wills it.

Equality Before the Law & Equal Entitlement to the Law

The requirement that justice must be evenhanded is a sine qua non of the rule of law. The rights under the law must accrue to all. The obligations and liabilities of the law, generally speaking, must apply generally. These issues are not trite or dead when problems such as human trafficking, racial discrimination and gender inequality pervade; the sanctity of equal entitlement to the law must be upheld. Even convicted murderers awaiting execution must be allowed a reasonable time for their petitions to an international body to be heard and for the ensuing reports to be considered by the Privy Council before their execution (A.G. v Joseph and Boyce (2006)). Conversely, from the impoverished robber to the President or his Ministers, all must be held liable for their illegalities.


For good governance, governmental authorities are commonly given wide powers under statute. This does not mean that they can make an irrational, emotional or prejudiced decision. Such a decision would be beyond their power or ultra vires and can be quashed by the High Court. All decisions by public authorities affecting public rights must take only relevant matters into consideration and eschew all irrelevant matters. Defined limits on State power are vital to the rule of law. The rule of law requires that decisions by authorities are disciplined and reasonable, otherwise we would be staring oppression in the face. In fact our Judicial Review Act, Chapter 3:06, which, although law awaits being brought into force, would give affected persons the right to apply to an authority for the reasons for its decision. For that provision and others too many to mention, the activation of the Judicial Review Act would be momentous for the rule of law.


We must activate, maintain and strengthen the architecture for the rule of law as highlighted; without spirited enforcement of such Guyana cannot tap into the true potential of those benefits that accrue from the rule of law.
For public consumption, what I have attempted to do is to condense some of the mass of writing on the topic. I trust that, for some, I helped a better appreciation for the rule of law, its meaning and significance. I suggest that interested readers can delve into their own exploration as there is much that I have left unsaid.

The Real, Reel Meal

October 16, 2015 by · Leave a Comment 

by Teni Housty, Attorney-at-Law, LL.M.; MBA

The times when we stop to think that life is good are not always frequent. Sometimes, Guyana can be that sort of place. When last did you, the reader, have a moment when you said Guyana is good and you had a good time? The power of a positive perspective is an interesting human capability. It is from this positive orientation that this tale of a real, reel meal begins.
I thank my colleague from the Belize Red Cross for the title of this contribution, which was conceived on a bus to the airport after five days of a regional Red Cross conference. The author has not strayed too far from his foundations. This is a story of law, fishing, catching and cooking. Part one deals with the real, part two the reel, and part three, the meal.

The Real
When work takes over life, there comes a time for a reality check. The reality check can be voluntary, whereby the busy person takes a break from the hectic schedule by choice. On the other hand, it can be involuntary – not in the sense of “involuntary manslaughter”, but in the sense of a medical complication that causes the busy individual to slow down. For the author the choice is voluntary, the reality check and the way to keep it real is to go fishing.
For the practical fisher the first step in the pursuit of the real is to get real bait. For this tale the bait is white belly fresh water shrimp. To be successful in this step, the fisher has to be first in time. The first time takes precedence and has the benefit of selecting the prime shrimp.
Having acquired the bait, the next step is to ensure that you call up your “real brethren” and say lets pack a cooler and throw a line in the water. The minds are ad idem, the deal is struck and the journey begins. To avoid any allegations of criminal offences involving grievous bodily harm contrary to several sections of Part II of Cap 8:01, the location is not disclosed. As is sometimes warned by real fishermen when it comes to a good fishing spot, “If I tell you I will have to kill you.” This is time for the reel part of the story.

The Reel
For this type of fishing you either need a bait-casting or a spinning reel. A fly reel may work but complicates the task. The rod has to be strong, the eyes sturdy and the line of the right test. Negligence in any of these equipment areas will cause the fisher to be contributory to their own loss or an accessory to his or her own demise. With the right reel and the real bait, it is time to fish and catch. The targets are the fish some may say – the innocent. Not all fish are innocent. There are some out there who are robbers of bait, high jumping escapees and inciters of violence.
The subjects of the present investigation or inquiry are the scaled high jumping escapees and the scaled inciters of violence. For the full disclosure of identity, these are the snook and tarpon/cuffum/silver king. For the smaller non-scaled fish that might obstruct the pursuit, if caught they are to be released on their own recognizance. It has been said that every day is fishing day, but not every day catching day. This would not be a tale without a catch.
The process of catch may involve old talk bordering on civil defamation, be that as it may, the talk works. Additionally, the catch involves several offences. When the cork ducks, the adrenaline runs depending on the bite to the point of intoxication. Intoxication is only a defence to certain crimes, unfortunately, none of which are part of the catch.
When the strike occurs, the first reaction of that silver king is an attempted escape contrary to section 108 of the Criminal Law Offences Act Cap 8:01. If he escapes, there is profane language contrary to section 141(1) of the Summary Jurisdiction Offences Act Cap 8:02 (Cap 8:02) from the fisher, coupled with abusive, insulting as well as profane language contrary to section 141(2) of Cap 8:02 which may extend to several body parts and generations of the family, all of this on the part of the your “real brethren”. From the escapee, there is the aggravated assault contrary to section 22 of Cap 8:02 as the cork and hook come out of the mouth, then directly to the person fishing. This is also a direct result of premature striking.
If the hook sets, the escapee is caught with all attempts at escape being rendered futile. Patience is necessary and would be the answer to a writ of habeas corpus seeking the early release of the hooked fish. The fish is caught and successfully landed with the help of the “real brethren”. To keep it fresh, the process of cleaning begins, following which, the fish is placed in an ice box with ice and a few beverages of choice, not sufficient to contravene any laws under the Road Traffic Act Cap. 51:02.
When in the box, the fish is on remand as the course of the meal is determined. The fish on remand is a tarpon, so the meal is to be decided.

The meal – Preparation
There are some lawyers who like to talk. They feel that the more they talk, the more they get paid. This approach has prompted many a judicial officer to say, get to the meat of the matter. In some courts, the meat is built on skeletal submissions. For a tarpon, the meat and the bones are inextricably bound together, the bones float in the flesh. The preparation involves actually getting the meat from the bones. The process for many is a trade secret not to be disclosed. For the author, the secrecy is maintained. The result of the application of the process is fresh boneless meat ready to be made a perfect meal. The skeletal remains will be discarded without the need for an autopsy as the cause of death and the perpetrator of the act are all known.
With this meat the common preparations include fish burgers, fish balls or steamed fish balls. The choice is guided by the fact that your “real brethren” had acquired real nice eddoes from his farm. So the choice is fried eddo tarpon balls. The ingredients include pepper, lime, salt, onions and garlic. The proportions and other methods are prohibited from disclosure by the law governing trade secrets.

The side dish can be anything of choice, but as with any tale when the story is so sweet, you forget how much time has passed. The eddo balls serve as a real meal at any time of the day. For the author it was dinner. So there you have it: a real, reel meal in Guyana. Just a little reminder that there is good in Guyana, for real.

Sexual Offences Act – Cap. 8:03

August 18, 2015 by · Leave a Comment 

By Justice Claudette Singh CCH,  Former High Court Judge & Justice of Appeal

A person commits the offence of rape if he engages in sexual penetration with another person (the complainant) without consent, or causes the complainant to engage in sexual penetration with another person. Silence or lack of physical resistance cannot be inferred as consent.

The term “penetration” has been given a very wide meaning under Section 2 of the Act, and is not limited to penetration by the male penis, but the intrusion of any part of a person’s body or of any object into the vagina or anus of another.

A person who commits the offence of rape is liable on conviction on indictment to imprisonment for life.

Under Section 4 of the Act, a person commits the offence of sexual assault if –

he  touches the person in a sexual way.

“touching” is defined in Section 2 of the Act as including touching –

  1. with any part of the body which includes a part surgically constructed (in particular through gender reassignment surgery);
  2. with anything else or

iii.  through anything

Sexual activity with a child under sixteen (16) years; meeting a child under 16 years following sexual grooming and sexual activity with a child family member.

The Act also makes paper committals mandatory in that it specifically prohibits oral preliminary enquiries.

To conclude, it would seem that the Act is more favourable to victims. Section 69 states that the Judge is no longer obligated to warn the Jury that it is dangerous to convict the accused without corroboration of the complainant’s evidence.  Corroboration is independent evidence which incriminates the accused on a material particular.

The Act dispenses with this warning being given to juries. Previously, absence of this direction by a Judge would warrant the conviction on such a charge to be set aside.

A child or an adult may, after being raped, complain about the ordeal to a parent or a trusted friend almost immediately after.  This is known in law as a “recent complaint”.  This complaint is admissible at the trial, not as evidence of the truth, but, to establish consistency in the person’s story to rebut a charge from Defence Counsel as recent fabrication, improper influence or motive. Under Section 72 of the Act, as to whether the complaint was made as soon as could reasonably be expected, the Court must consider certain factors specified in the section. Each case would now turn on its own peculiar facts.

It would seem therefore, that if the complaint is not made immediately, but some time after  it would still be admissible.

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