BY: DR VISHNU BISRAM
Reference is made to an advertisement in the Trinidad Guardian (page 10 July 5) regarding the Guyana constitution and jurisdiction of the Caribbean Court of Justice. The paragraphs are deliberately cited to mislead readers and presumably to influence the judgment before the CCJ due on Wednesday on the appeal of the Guyana Court of Appeal decision. The ad violates basic norms of justice and must be condemned.
Any matter before the court is considered sub judice, meaning the parties should not engage in public discourse on the matter till the court has pronounced judgment which is slated for Wednesday afternoon. The media is also restrained from attempting to influence the court’s judgment. Lawyers make their case during oral arguments and submissions; they (or their agents) cannot litigate outside of the court. Lawyers cannot engage in publicity stunts to prejudice the court – this is a principle that is more important than law itself.
An advertisement on the CCJ’s jurisdictional issues and or how it should rule on a matter should not be entertained. The ad seeks to corrupt the course of justice. The court fixes a ruling for Wednesday. Clearly, the ad seeks to prejudice the outcome. It is scandalous and unacceptable by pro democracy and freedom loving people and those who value impartial justice. The ad violates the foundation of the sub judice principle, which is a cornerstone of ‘justice is blind’. All lawyers know this principle and swear their practice by it. Moreover, the ad seeks to compromise the integrity and independence of the court. In addition, it seriously and deeply offends the intellect of the judges of the court and law abiding people as well as those who practice law. It is troubling, illegal, wrong, and unethical and must be condemned.
The court and the public must not pay heed to the ad whose contents are selective and taken out of context. On the face of it, the cited paragraphs would suggest that the Court of Appeal ruling of Guyana is final and the CCJ has no jurisdiction in overturning the CoA judgment. That is not factual.
As a student and teacher of constitutional law, I researched the language and intention of the framers when the Act was passed in Guyana parliament in 2004. I also spoke with several parliamentarians who clarified the intent of the legislation.
The first paragraph refers to cases that were already determined by the CoA and that were brought before the CoA prior to the assenting of the CCJ treaty in 2005. It did not involve matters brought before the CoA court thereafter. All matters before the CoA, unless specifically stated, are ‘appealable’.
Democracy and jurisprudence in Guyana were undermined and compromised for decades. Elections were rigged in 1968 to give the Burnham party a two-thirds parliamentary majority that was used to abolish appeals to the Privy Council in 1970. The rigging of the 1968 election could not be challenged at the PC because the CoA became the final court. In 2004, then President Jagdeo signed on to the CCJ treaty with the expressed intention that it is the final court for all matters pertaining to Guyana, thereby giving the CCJ jurisdiction.
Even where an apex court lacks specific jurisdiction over a superior court, the court can exercise original jurisdiction where fundamental (natural) rights are violated. The PC and final courts in the Commonwealth and in the US, India, Canada, etc. set aside unjust rulings that violate fundamental voting rights. Moreover when a superior court rules incorrectly or accepts jurisdiction of a matter beyond its remit, its ruling can be reviewed and set aside if it violates basic natural laws or if its accepts jurisdiction under the wrong clause. The election matter is currently before the CCJ – it is the exclusive domain of the court to rule on whether it has jurisdiction. An ad should not have been proffered to influence its ruling.