US committed to helping Guyana improve aspects of legal system -US charge
December 29, 2002
The United States government is committed to help Guyana improve aspects of its legal system particularly regarding the timeliness and efficiency with which cases are resolved, according to Charge d'Affaires a.i. at the US embassy, Betty McCutchan.
She said that Guyana was fortunate to have a Chancellor of the Judiciary and a Chief Justice committed to improving the system, and who were taking steps to make the necessary changes.
McCutchan repeated her government's commitment to assist in this process when she addressed a dinner hosted by the Guyana Bar Association and the Women Lawyers of Guyana at the Georgetown Club last Saturday evening. The theme of her address was the 'rule of law' and she looked at the core concepts that could apply theoretically and practically to any country no matter what the cultural heritage.
She told her audience that included Chief Justice Carl Singh, Speaker of the National Assembly Ralph Ramkarran and St Lucia's Solicitor General, Rose Blenman, that "scholars, governments, multilateral institutions and non- governmental organisations are coming to the conclusion that what a country needs - for stability, for good governance, for economic growth and for reducing social problems like crime and corruption - is not a perfect legal system, but the 'rule of law.'"
McCutchan relied on ten core concepts relating to the rule of law which Barry Hager, a US lawyer and specialist in international finance, trade and administrative law set out in a monograph produced for the Mansfield Center in preparation for its Tokyo Symposium on the Rule of Law.
The first of these core concepts said McCutchan, was constitutionalism which she defined as "the fundamental statement of what a group of people gathered together as citizens of a particular nation view as the basic rules and values which they share, and to which they agree to bind themselves."
The second such concept was that the law governed the government, by which was meant that everyone was subject to the law, not excepting the government, the president, a minister, an army or police officer, the most powerful public servant or the National Assembly itself.
The third core concept McCutchan made reference to was the existence of an "independent judiciary endowed with the power of judicial review of legislative and executive acts." This, she continued, enforced the two key mechanisms that ensured the rule of law, namely the separation of powers and checks and balances among the different powers.
Fair and consistent application of the law was the fourth core concept listed by McCutchan. She argued that public confidence in the rule of law could only be sustained if the perception was wide and deep that there was no favouritism in the law based on distinctions such as geography, religion, ethnicity, etc.
McCutchan also referred to the need for the law to be transparent.
She explained that firstly "laws must be sufficiently understandable and broadly published so that individuals have some fair warning of what conduct might provoke sanctions from the government and also that they can insist upon their legal rights in a timely fashion and have them respected by other parties who likewise have reasonable access to the existence and meaning of laws."
The other aspect of this concept McCutchan said was the process by which the laws are made. She explained that if government agents announced the laws as fiat or fait accompli then the sense of reasonable rationale behind the laws might be undermined. She said, "even if the reasonableness of the law seems clear, a process for promulgating that law that is not open and does not allow for participation and comment by those who may be affected by it will undermine the general public support for that law."
McCutchan also posited as a core concept the accessibility of the law to all, explaining that it was important that people had a real chance to participate in the law-making and law adjudicating process and try to vindicate their rights, whether personal or economic.
Referring to the American aphorism that justice delayed is justice denied, McCutchan said that the efficient and timely application of the law was necessary in both criminal and civil cases. She noted that less than timely and efficient application could lead to a defendant being deprived of his or her liberty for prolonged periods even before a determination of guilt or innocence, even though there was a presumption of innocence in some justice systems. In a civil case, she said, slow judicial or regulatory proceedings may render an economic interest moot or eliminate the opportunity for an economic gain in our modern fast-paced society.
Another core concept McCutchan put forward was the protection of property and economic rights, describing this as one of the most controversial elements of the rule of law. She explained that the majority of the nations of the world accepted that "economic development is most likely to occur where basic free market principles are respected and allowed to operate, with private property rights and the sanctity of contracts being at the heart of such free market principles." However, she cautioned, "it does not mean that governments are required to subordinate all broad national or social interests to specific private property interests." She continued, "Each legal system has its own variables, but must provide mechanisms whereby a substantial public interest can override a private property claim.
"In those cases, however, the principles of due process and independent judicial resolution of disputes are relied upon to resolve the conflict between private property/contract rights and the interests of the government and the society at large."
McCutchan included too the protection of human and intellectual rights, which she said were covered in documents such as the US Bill of Rights, the French Declaration of Rights of Man and the Universal Declaration of Human Rights.
She said that the focus of these documents was primarily to restrain governments from depriving individuals of their rights. However, what was generally overlooked was that these documents "also entail an affirmative mandate to governments to create an enabling environment for the protection of human rights, interceding where necessary to prevent the violation of the human rights of one group or individual by the actions of others."
The last of the core concepts McCutchan mentioned was the necessity for a transparent and accessible process for changing laws. She said that while the common notion of rules and laws contained an assumption of inflexibility, a necessary component of the rule of law was the process by which the law itself could be changed, consistent with the values of transparency, accessibility and predictability.
During the course of the evening immediate past president of the Bar Association, Anande Trotman, received awards for her outstanding contribution to the association, and was also presented with the Sheroe's Award by the Women Lawyers of Guyana.