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The imperative for appointment of a substantive Chancellor of the Judiciary and a substantive Chief Justice in Guyana

By Selwyn A. Pieters B.A., LL.B., L.E.C.

Lawyer & Notary Public (Ontario, Canada)
Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Pieters Law Office
Created December 21, 2024

The Executive President of Guyana, His Excellency Mohamed Irfaan Ali and the Leader of the Opposition, Aubrey Compton Norton, are required by Article 127 of The Constitution of the Cooperative Republic of Guyana, Chapter 1:01, (the Constitution) to agree on the appointment of the Chancellor and the Chief Justice of Guyana. Two of the highest judicial officers in Guyana's local courts, the highest being the Caribbean Court of Justice (President and other CCJ Judges).  A recorded version is on youtube: Imperative for appointment of Chancellor and CH

Guyana Constitution was amended 2001, by Act No. 6 of 2001, The Constitution (Amendment) (No 4) Act of 2001, Article 127 (1) and (2) of the Constitution require agreement between the Executive President and the Leader of the Opposition on the Jurists to substantively occupy the posts of a Chancellor of the Judiciary and Chief Justice of Guyana.

There has been no agreement since 2005 between Executive Presidents (Jagdeo, Ramotar and Granger) and LOO (Corbin, Granger and Jagdeo) on jurists to occupy the positions of Chancellor of the Judiciary and Chief Justice of Guyana.

In June 2022, an application was filed in the Supreme Court of the Judicature styled as Vinceroy Jordan v. Attorney General 2022-HC-DEM-CIV-FDA-865. Materials were exchanged by the parties and filed in Court, written and oral arguments were presented and a written judgment was rendered on April 26, 2023. In that decision the Honourable Madam Justice Damone Younge made the following declarations in Jordan, at paragraph 45: 

a.         A Declaration that Article 127(1) of the Constitution creates a mandatory constitutional duty and obligation on the part of the President and the Leader of the Opposition to comply with its provisions.

b.         A Declaration that for as long as there are no substantive appointments to the offices of Chancellor and Chief Justice under Article 127(1) of the Constitution, the President and the Leader of the Opposition are under a continuous mandatory constitutional duty and obligation to engage in a process which results in compliance with Article 127(1) of the Constitution.

c.         A Declaration that notwithstanding that Article 127(1) of the Constitution does not set any timelines for compliance with its provisions, the duty imposed on the Constitutional actors by Article 127(1) of the Constitution must be discharged with all convenient speed.

d.         A Declaration that any protracted or further delay in complying with Article 127(1) of the Constitution is, and would be, inimical to the independence of the Judiciary as set out in Article 122A of the Constitution.

The Court urged the parties to bring life to the declarations would be complied with “all convenient speed.” The Court stressed in para. 41 of its judgment that “no further delay or excuses ought to be countenanced.”

 At para. 43, the Court wrote: 

For too long Guyana has been without substantive office holders for the two top positions in the Judicial arm of the State, a situation which continues to be untenable and unacceptable to the citizenry and inimical to the independence of the judiciary that the Supreme Law of the land provides for. Any further delay in commencing this process should be eschewed so that this "significant blot on an otherwise impressive Guyanese legal and judicial landscape” is not perpetuated further.

Both parties appealed the ruling for various reasons but none of the parties have taken steps to perfect the appeal.

As well, it is not apparent that the President and the Leader of the Opposition has engaged further as required by the Constitution on these appointments.

Progress has been made in the judicial appointments process in Guyana:

1)      There is a fully functioning Judicial Service Commission;

2)      There were 10 judges appointed to the High Court recently;

3)      There were vacancies for six Court of Appeal Justices posted in May 2024. Applications were received, there was the vetting of each qualified candidates, those candidates were interviewed by the Judicial Service Commission and the Executive President has a short-list of suitable candidates from which he can appoint on the advice of the Attorney General and Minister of Legal Affairs.

With the fix in the judicial shortage at both levels of Courts, the building and provision of more courthouses and courtroom facilities and judicial staff nationwide, the order of business in 2025 prior to the government going into election mode should be another meaningful engagement between the Executive President and the Leader of the Opposition in respect to the substantive appointments to the office of Chancellor and Chief Justice.

2024 Human Rights Day: the fight for justice and advancement of human ri...

Venezuela already launched a soft invasion of Guyana

 By Selwyn A. Pieters B.A., LL.B., L.E.C.

Lawyer & Notary Public (Ontario, Canada)
Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Pieters Law Office

Created December 3, 2023

The Cooperative Republic of Guyana (“Guyana”) / the Bolivarian Republic of Venezuela (“Venezuela”) border dispute and Guyana’s continued existential threat from Venezuela (Speaking notes)

By Selwyn A. Pieters

Attorney at Law

The demarcation of the Guyana and Venezuela existing boundary was laid down in a final and binding international Arbitral Award October 3rd, 1899 (Boundary between British Guiana and Venezuela (1899)), to which both Guyana and Venezuela are still bound. Venezuela accepted and honoured the border determined by the 1899 Arbitral Award for more than half a century.

The post-independence era has had periods where the Guyana-Venezuela Border Controversy has risen its ugly head and moreso for political mileage on the part of Venezuelan politicians.

 

Venezuela from time to time since the 1962 (during Guyana’s struggle for independence from Great Britain) continue to raise the issue of a claim to Guyana’s territory. Venezuela current claim to Essequibo covers 70 percent or two-thirds of Guyana’s total land mass.

Venezuela and Guyana had armed military conflict when our soldiers removed Venezuelan Forces from Ankoko Island in 1966 and has engaged Venezuelans in respect to Eteringbang twice.

Guyana is 83,000 square miles with a population approximately 750,000. About 90 percent of the population inhabits the narrow coastland area. Our borders are porous. And from time to time there are events involving Venezuelan soldiers and civilians at Eteringbang, Mabaruma, Kaikan, and other areas in the Cuyuni-Mazaruni region of Guyana

In 2016 Venezuela resurrected its claim. The incursion of Venezuelan soldiers near Eteringbang in May 2016, and their firing of weapons at officials of the Guyana Geology and Mines employees forced the government of the day and then then opposition PPP in a bi-partisan move took the case to the International Court of Justice.

The legal issues before the International Court of Justice (ICJ) with regard to the claim brought by Guyana was heard. The Honourable Attorney General and an able team of lawyers provided oral arguments in Arbitral Award of 3 October 1899 (Guyana v. Venezuela) in the International Court of Justice on 22 November 2022 and following before the ICJ. Guyana prevailed on jurisdiction. It is unknown when its final determination will be made. In light of Venezuela's Referendum to be held on December 3, 2023, the ICJ last Friday issued provisional orders so that the status quo ante remains and that Venezela does nothing that would annex the Essequibo Region whilst this matter is under consideration by that Court.

However, what is apparent is Venezuela’s move to settle the border regions of Guyana with its citizens. In a Demerara Waves Online publication of July 18, 2022, Captain Gerry Gouveia, National Security Adviser, was quoted at an AMCHAM Guyana forum setting out the security threats posed to Guyana by persons from Venezuela. He gave a number of examples, including, and I quote: “a lot of non-state actors on our Western border that are terrorizing our business people and challenging our security forces, whether it is orchestrated or not.” And I further quote him: “You could understand the security dilemma we face that in the migrants could be embedded Venezuelan agents and so this is not something that we don’t appreciate, that we are looking at as well as we open our arms with compassion and with humanity.  . . . There are an estimated 60,000 Venezuelans in Guyana now.”

Venezuela with a population of more than 28.2 million person is capable of launching a bloodless takeover of our borders simply by overwhelming our population with Venezuelan settlers, refugees and persons with military-like bearing. In other words, sleeper cells. Deportation of Venezuelan migrants who are not Conventional Refugees or persons in need of protection or persons who are legitimately in Guyana for a proper purpose would not be in violation of International Law, it would be consistent with the laws.

It is possible that Venezuela can launch a soft invasion of Guyana by simply overwhelming its population and resources. Spanish speaking Venezuelan nationals specifically warraus are reported to be amongst the populations of significance who are migrating from Venezuela to Guyana.

Thus, Guyana cannot only rely on the International Court of Justice and its strategic business and military partners to secure its borders but must in its deliberate judgment ensure that the immigration, military, social welfare and policing resources are adequately deployed to interdict, document and deport those who are indeed trafficked to Guyana for purposes that can indeed threaten its security and overwhelm its population.

It should be noted on April 15, 2019 in Santiago, Chile in what is known as the “Lima Group declaration”, several Latin American Countries “Agree that Venezuela is experiencing a humanitarian, political, economic and moral crisis generated by the illegitimate and dictatorial regime of Nicolás Maduro, which constitutes a threat to international peace and security, with regional and global effects.” The rule of law in Venezuela under President Maduro is honoured in the breach rather than the observance.

Venezuelans, including the Venezuelan President himself, Nicolas Maduro, has up the ante (particularly on with the referendum, inflammatory rallies and speeches on social media and amassing troops at the Border with Guyana). The stakes are high given Guyana’s recent economic shift as an oil producing country. This is not a diplomatic exercise on Venezuela’s part nor is it an exercise in which it will abide by the orders of the ICJ, it is an exercise that potentially can destabilize investor confidence in Guyana, cause Guyanese citizens grave unease and discomfort and indeed set the stage for a soft invasion. The very legitimacy of the Venezuelan government questionable.

We as Guyanese have to stay woke and stay engaged. This is the time for all Guyanese to support our government in its fight against this existential threat from Venezuela and its President Nicolas Maduro.

 

Attorney General of Guyana, Sarah Browne, Vikash Ramkissoon v. Christopher Jones & Speaker of the National Assembly

 Electronic Copy of the Full Judgment of the Guyana Court of Appeal in  Attorney General of Guyana, Sarah Browne, Vikash Ramkissoon v. Christopher Jones & Speaker of the National Assembly Civil Appeal No. 50 of 2021

Desmond Morian v. Attorney General of Guyana Civil Appeal No. 19 of 2016 Order of the Court of Appeal 

Desmond Morian v. Attorney General of Guyana  (Civil Appeal No. 19 of 2016, 23rd January 2020) - Transcript  Guyana Court of Appeal

Desmond Morian v. Attorney General of Guyana Ian Chang C.J. decision (2015-HC-DEM-CIV_CM-55, 19th February 2016

Ethical Conduct in Public Officer - meeting the test of rectitude

 No one really is above the law, however that law is defined. As persons in the public eye, where as a Judge, Adjudicator, lawyer, Police Officer, Government Minister or even Influencer, we can be subjected to excessive scrutiny in terms of our actions and/or omissions. Obviously, it calls for some risk management in our personal and professional lives. In my professional life we call it "defensive lawyering", which means dotting the i's and crossing the T's. In our private lives it involves risk management or avoiding situations that can embarrass our profession, employer, family and friends. if one is living a risky lifestyle the odds of things going terribly wrong is greater given the obvious pitfalls.

This calls for an understanding that we are under a greater level of scrutiny. I know that as a lawyer of prominence whose images are flashed on televisions and who appears in newspapers and the internet more often that I like. It means that I can't do some of the things I would like to do or go to some of the places where I can socialize with people that I like.

I also know that as a Black man with dreadlocks if things go south I would be held to a higher standard: See, for example, Law Society of Ontario v. Guiste, 2023 ONLSTH 59 (CanLII), <https://canlii.ca/t/jwx9r>. See also my writings on the plight of Black lawyers in Selwyn Pieters, “Lawyer Regulation, Race and Justice: An updated Look at LSUC disciplinary matters involving Black and Visible Minority lawyers.” Selwyn Pieters : A Blog That is Organized Around the Lawyering Experience of Criminal and Human Rights Lawyer Selwyn Pieters and Things that Interest Him!!!!! (blog)12 December 2014, <http://selwynpieters.blogspot.com/2014/12/an-updated-look-at-lsuc-disciplinary.html> and Selwyn Pieters “Lawyer Regulation, Race and Justice”; Law Society of Upper Canada v. Selwyn Milan McSween, 2012 ONLSAP 003 <http://selwynpieters.blogspot.com/2014/12/an-updated-look-at-lsuc-disciplinary.html>

The task therefore is for us to recognize this and in so doing for us to meet the test of rectitude because we are constantly under public scrutiny.

Race Anti Black Racism and the weaponization of Criminal Justice System

Summary of the December 2, 2022 Rulings in Police Service Commission and Paul Slowe v. The Secretary of the Police Service Commission et al 2021-HC-DEM-CIV-FDA1004

  By Selwyn A. Pieters B.A., LL.B., L.E.C.

Lawyer & Notary Public (Ontario, Canada)
Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Pieters Law Office

Created December 2, 2022

Police Service Commission and Paul Slowe v. The Secretary of the Police Service Commission et al 2021-HC-DEM-CIV-FDA1004

Georgetown, Guyana – December 2, 2022 - The Honourable Mister Justice Gino Persaud delivered an oral judgement via zoom videoconference on December 02, 2022 at 1:15 PM at the Demerara High Court in Guyana in the matter PSC and Paul Slowe v. The Secretary of PSC et al 2021-HC-DEM-CIV-FDA1004 in relation to two interlocutory applications brought by The Attorney General of Guyana, Commissioner of Police, and the Honourable Prime Minister as well as the Police Service Commission.

Mr. Paul Slowe was represented by Selwyn Pieters, Dexter Todd and Dexter Smartt.

The Attorney General was represented by Solicitor General Nigel Hawke, Shoshanna Lall, Chevy Devonish, R. Clarke and Arti Outar.

The PSC was also represented by a lawyer standing in for Darshan Ramdhani, K.C.

On July 5, 2022, The PSC Attorney, Darshan Ramdhani, K.C., filed an application seeking permission for the application to be wholly discontinued and for the Commission to withdraw the matter. The matter then came back before the Court on July 11, 14, 22, August 24, and September 20, 2022.

Attorney General and Minister of Legal Affairs Mohabir Anil Nandlall, S.C., M.P., at the September 20, 2022 hearing made an oral application for a stay of the proceedings pending the outcome of an appeal filed on the Chief Justice’s ruling in Aubrey Norton v. Attorney General of Guyana et al. 2022-HC-DEM-CIV-FDA-902, which held that the Police Service Commission was not properly constituted.

Justice Persaud commenced his ruling on December 2, 2022 by discussing the purpose of judicial review repeating paragraphs 12-15 of his March 9, 2022 ruling:

No Lis between the parties to a claim for judicial review

 

12. In Trinidad, the C.A. in the matter of Dr. Myron Wing-Sang Chin, Farrell (in their capacities as the Commissioners of the COI into the construction of the Las Alturas Towers) v Noel Garcia, AG (CA# P-342/2017) delivered on 16 January, 2019 reaffirmed the existing principle of public law that there is no “lis” between the parties to a claim for judicial review. Justice of Appeal Mendonca at para. 14 stated:

It is correct to say that in judicial review proceedings there is no lis between the parties. Judicial review proceedings are directed at the decision and not the parties. As was said in Gilharry v. Transport Board et al BZ 2012 CA 10, “what is vulnerable [in judicial review proceedings] is the decision and not the decision maker” it is the “process by which the courts exercise a supervisory jurisdiction over the activities of public authorities in the field of public law”.

 

13. In the case of R v Stratford-on-Avon District Council and another, ex parte Jackson - [1985] 3 All ER 769 it was held that,

In judicial review proceedings there is no true lis inter partes or suit by one person against another: see R v Secretary of State, ex p Hackney London BC        

 

14. In the case of R v Secretary of State for the Environment, ex parte Hackney London Borough Council and another - [1983] 3 All ER 358 it was stated at page 367 that,

Moreover, we do not think that there is in judicial review proceedings any true lis between the parties…

…the court “is not finally determining the validity of the tribunal's order as between the parties themselves” but “is merely deciding whether there has been a plain excess of jurisdiction or not”. They are a special class of remedies designed to maintain due order in the legal system, nominally at the suit of the Crown, and they may well fall outside the ambit of the ordinary doctrine of res judicata.

 

15. In the case of Chief Constable of North Wales Police v Evans [1982] 3 All E.R. 141 at p. 143 per Lord Halsham stated.

The remedy by way of judicial review is directed at the decision-making process itself rather than at the parties who made it. Its purpose “is to protect the individual against an abuse of power by a wide range of authorities, judicial, quasi-judicial, and administrative to ensure (he) is given fair treatment by the authority, to which he has been subjected …”

 

Justice Persaud in his ruling said the two applications has stymied the hearing of the substantive matter filed by Mr. Slowe and there has been one application after another since the matter was filed in the Court and engaged his attention.

On the application for a stay until the conclusion of the appeal in Aubrey Norton v. Attorney General was resolved. Justice Persaud considered in detail the May 25, 2022 ruling of Justices Priya Sewnarine-Beharry and Fidela Corbin-Lincoln, sitting in the Full Court in Attorney General v. Police Service Commission and Paul Slowe 2022-HC-DEM-CIV-FCA- 18 which upheld his March 09, 2022 jurisdictional ruling to strike out application and substituting Paul Slowe as a party. He read paragraph 5 of that decision which held that:

[5] The effect of the term of the appointed members of the Commission becoming vacant is simply that there are currently no members to carry out its functions. This by itself is not a basis to strike out the claim under CPR 14.01. Members can be appointed at any time to continue to carry out the functions of the PSC. Upon their appointment those members could determine whether to continue or discontinue the claim. Of course a court would be entitled to take the continued non appointment of members to the Commission as a basis to strike out the claim as an abuse of process as this would delay the prosecution of the action.

 

Justice Persaud read paragraph 6 of the Full Court’s decision: “We therefore agree with the learned trial judge’s decision to refuse the application to strike.”

Justice Persaud thereafter read paras 7-8 of the Full Court decision:

[7] We do not find that the order as framed by the learned judge had the effect of permitting a private citizen to carry out the functions of the PSC - a constitutional body. It is clear from the reasoning of the learned trial judge that he found that Mr. Slowe had an interest in his own right and not that he was continuing the action on behalf of the PSC.

 

[8] We fully agree with the learned trial judge’s reasoning as to why Paul Slowe is an interested party and should be added. However, we do not find that it was necessary to substitute Mr. Slowe in place of the PSC which remains an existing constitutional body albeit unable to properly function in the absence of appointed members. Based on the reasoning of the learned trial judge Mr. Slowe should be added as a party in his own right. Apart from the court’s power to hear from any person with a sufficient interest in judicial review proceedings [CPR 56.04] the court has a general power to add a party at any stage of the proceedings [CPR 19]. The addition of an interested party saves time and costs.

 

Justice Persaud then went on to consider the Chief Justice’s declarations and orders in Aubrey Norton v. Attorney General of Guyana et al. at paragraph 116:

(2) It is hereby declared that in the absence of the appointment of the Chairman of the Public Service Commission to the Police Service Commission, subsequent to the expiration of the life and or term of the appointment of the previous Police Service Commission, the said Police Service Commission is not currently lawfully and duly constituted in accordance with article 210 of the Constitution of Guyana.

(3)        As a consequence, it is hereby declared that unto June 29, 2022, the second respondent could not have lawfully consulted with the other members of the Police Service Commission on the appointment of an acting Commissioner of Police in the absence of the appointment of the Chairman of the Public Service Commission as a member of the Police Service Commission pursuant to article 210 (1) (b) of the Constitution of Guyana.

(6)        It is hereby declared that in order for the Police Service Commission to exercise any of the powers, functions, and or duties conferred on it by the Constitution of Guyana, it is a mandatory requirement that upon the constitution of the Police Service Commission subsequent to the expiration of the life and or term of the appointment of the previous Police Service Commission, that a Chairman of the Public Service Commission be appointed and be made a member of the Police Service Commission pursuant to article 210 (l)(b) of the Constitution of Guyana.

(7)        As a consequence, for the avoidance of any unforeseen consequences of my decision regarding my finding that there is a deficiency in the Police Service Commission as currently constituted, it is hereby declared that any action of the said Police Service Commission as currently constituted is validated pursuant to the de facto doctrine.

 

Justice Persaud having considered the Full Court ruling in 2022-HC-DEM-CIV-FCA- 18 and the Chief Justice’s ruling in 2022-HC-DEM-CIV-FDA-902 dismissed the application as an abuse of the process of the Court, holding that “there can be no stay of a declaratory order, and I am not prepared to stay the proceedings before me, pending the appeal of the Chief Justice’s ruling, which will leave the proceedings before me in limbo, since that appeal would take time to be heard and determine, and we have no indication how long that would take.”

Justice Persaud went on to say that the Norton appeal has no impact on Mr. Slowe’s right to have the lawfulness of his suspension adjudicated upon: “This is also an access to justice issue for Mr. Slowe. How long should he wait as a litigant, who is entitled to access to justice to have the legality of his suspension ruled upon while the respondents file interlocutory application upon interlocutory application delaying the substantive issue.

On the Police Service Commission application to wholly discontinue the matter, filed by Darshan Ramdhani, K.C., the Court held that “It is patently clear that the application cannot be sustained since the Police Service Commission is not properly constituted and cannot participate in these proceedings. The application to discontinue the Fixed Date Application is refused.”

Justice Persaud repeated paragraph 5 of the Judgment of the Full Court which upheld his earlier decision on standing of Paul Slowe as a litigant in the proceedings independent of the Police Service Commission.

Justice Persaud found that “There are no reasonable grounds which would allow the Police Service Commission to withdraw the Fixed Date Application. The Police Service Commission cannot withdraw Mr. Slowe’s right to have the legality of his suspension challenged.”

In summation, Justice Persaud made the following orders:

·         The oral application for a stay of proceedings pending appeal on Aubrey Norton v AG is an abuse of process and is hereby refused.

·         The Notice of Application filed by Mr. Ramdhani, filed 5 July 2022, is without merit and is refused in light of the Chief Justice’s decision in Aubrey Norton which held that the PSC is not properly constituted.

The timetable for the progress of the proceedings are as follows:

1.      The Attorney General is directed to file an Affidavit of Defence on behalf of The Attorney General of Guyana, Commissioner of Police, and the Honourable Prime Minister by no later than December 16, 2022.

2.      The Applicant Paul Slowe is directed to file an Affidavit in Reply by not later than December 23, 2022.

3.      Written Submissions are to be filed no later than January 9, 2023.

4.      The Police Service Commission is not entitled to file an affidavit. However, they may provide written submissions.

5.      Oral arguments will be heard on January 16, 2023.

END/