Paramountcy of the party is alive and well

Stabroek News
July 12, 1998

The perception is that the country is be`ing ruled by political decree rather than the rule of law, says Rex McKay, S.C. Since societies are governed by the letter and spirit of their laws, it is essential to good governance that the laws are good and beneficent and that there is obedience to such laws. Not only must the citizenry be made to obey these laws but also the executive government which has a greater duty and must also obey them.

There must be government in accordance with the legal prescriptions. There are numerous instances of naked usurpation of the statutory powers of public officers by the political executive which weakens the legitimate expectation of the Guyanese citizenry in the rule of law and which undermines the executive claim to good governance.

For example, the exercise of the statutory powers of the Comptroller of Customs by the Ministry of Finance or persons acting under his authority; the very existence of CANU whose members have not been selected by the Comptroller of Customs or the Public Service Commission and are not answerable to either entity but rather to the Secretary to the Cabinet.

It may also be recalled that the Secretary to the Cabinet stated publicly that Cabinet had decided that Gregory Smith be charged with having murdered Walter Rodney - a brazen usurpation of the functions of the Commissioner of Police and the Director of Public Prosecutions. More recently, it was alleged that the Minister of Home Affairs decided that the leaders of the protesters be charged by the Police.

It is also reported that the Minister of Home Affairs receives complaints in criminal matters and refers the complaints to the Attorney-General rather than to the Commissioner of Police of the Director of Public Prosecutions.

It does appear that the Minister of Home Affairs erroneously takes the view that criminal proceedings are matters within his portfolio or that of the Attorney-General. It is also reported that Cabinet make decisions on matters of the appointment of public officers and undermine the independence of the Service Commissions - even the Judicial Service Commission.

For a long time now citizens have been seeking "justice" at Freedom House rather than in the courts or at the public and statutory institutions. This state of affairs reflects the perception of the complainants that the political party in government controls these public and statutory bodies and that it is not the law which governs but the dictates of the political party.

In short, the complainants perceive that the country is being ruled by political decree rather than the rule of law. The doctrine of paramountcy of the party, despite claims to the contrary, is not merely alive and well but is being fostered and promoted at the expense and gradual demise of the doctrine of the separation of powers enshrined in the constitution.

There have been instances of judicial condemnation of executive lawlessness, but in the context of the Guyanese society, how many persons have the will and financial resources to access the courts? How many lawyers are possessed of the will to challenge the political executive on behalf of citizens alleging executive lawlessness?

The instances of judicial condemnation no doubt bear a deceptively low numerical relationship to the instances of reality. However, even if there is reason to despair, it must be hoped that the judiciary will be independent and strong for the independence of the judiciary is one of the indispensable pillars of a just and fair society.

Judges must not be exposed to executive threats, inducements in any form or manner or blandishments of any nature or kind and "must remain absolutely independent and fearless". If democracy entails good governance and good governance entails adherence to the rule of law, then Guyana can hardly claim to be a truly democratic society.

Complaints have been made prior to the PPP/Civic succeeding the PNC in 1992, and not without justification, that political dictatorship has made significant inroads into the rule of law and that democracy was then under siege.

Does the objective observer see any difference with the position before 1992 than it is now? Freedom of expression is only one facet of the rule of law. The recent resignations of Mr Ian Chang and Mr Fitz Peters who have both served for many years under both the PNC and the PPP governments may bespeak volumes since both are known to be true professionals if nothing else who have now decided to sacrifice years of pensionable service.

It is suspected that both of these resignations have been promoted by circumstances which relate to improper executive attitudes and prolonged acting appointments in substantive posts. In the case of Mr Ian Chang, S.C., over six years as DPP (ag.); in Mr Fitz Peters' case five years as Solicitor General (ag.)

Briefly, the rule of law implies:

i) that the powers exercised by politicians and officials must have a legitimate
foundation; they must be based on authority conferred by law;

ii) that the law should conform to certain minimum standards of justice, both
substantive and procedural and must be certain or predictable;

iii) where the law confers wide discretionary powers there should be adequate
safeguards against their abuse;

iv) like should be treated alike, and unfair discrimination must not be sanctioned by

v) a person ought not to be deprived of his liberty, status or property unless he is
given an opportunity of a fair hearing before an impartial and independent

It may be convenient therefore to summarise what "upholding" the rule of law means:

1) That the legislature, the executive and the judiciary must remain separate.

2) That the executive must not manipulate or attempt to manipulate the Judicial Service Commission or the Judiciary.

3) That the executive must respect the doctrine of the separation of powers which is enshrined in the Guyana constitution and all Westminster model constitutions; this means for example -

(i) that the Attorney General must not intermeddle in the independent office of the Director of Public Prosecutions. This would be misbehaviour in public office;

(ii) that the Prime Minister must not arrogate to himself the role of the DPP or the police. Police files are not for round robin to the Attorney General. This would be misbehaviour in public office;

4) That the Public Service Commission must recognise its independence which is so clearly expressed in the constitution. The intention of the framers of the Guyana constitution, and all Westminster model constitutions, is to insulate the Commissions against political interference. This means for example that the commission must not take instructions from the Executive (as the Public Service Commission did in the case of Clarence Chue) to file bogus charges against state employees with the sole aim of keeping them out of office.

5) That the Judicial Service Commission must act, not appear to act, impartially and eschew attempts to recommend for appointment persons of dubious competence whose sympathies lie with the government.

6) That the executive cannot in contravention of the constitution create or purport to create an enforcement agency purporting to give it powers under the Customs Act, to function in competition with the constitutionally entrenched law enforcement agency - the police force.

7) That the Comptroller of Customs must not continue to abuse his office by lending an unlawful hand to the executive purporting to clothe persons with the authority of Customs officers under sections 2 and 4 of the Customs Act for the unlawful purpose of serving in CANU; That is misbehaviour in public office.

8) That the Commissioner of Police as the Chief Law Enforcement Officer must obey all laws including the Coroners Act, Chapter 4:03. Section 5 of the Act reads: "Where an unnatural death is reported to, or comes to the knowledge of, any mamber of the police force, he shall forthwith cause a report thereof to be made to the coroner." There are about 46 cases of police killings which require coroner's inquests.

9) That there must be no political or economic discrimination especially in respect of the award of government contracts and allotment of land for housing.

10) That the pernicious practice of state employees and officers being subjected to prolonged periods of acting appointments to substantive posts must cease. There can be no true democracy where the executive does not observe the rule of law. And there will be no respect for the rule of law by the executive unless the transgressors are restrained by an independent judiciary. And there cannot be the appearance of an independent judiciary so long as the appointment of judges and members of the Judicial Service Commission remains in the hands of the executive.