|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.
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.