The Guyana Court of Appeal
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The Guyana1 Court of Appeal The Challenges of the Rule of Law in a Developing Country Bertrand Ramcharan Cavendish Publishing Ltd (2002) Book review by Sally Ramage ®1 Introduction It is with huge pleasure that I have had the opportunity to review this law book, which, regardless of date of publishing, illustrates, at the coal face, the workings of the Rule of Law in one developing country, Guyana, formerly British Guiana in South America. This is a most important book, full of food for thought, which can be used as a tool of comparison with other developing countries striving for Rule of Law. The author The author is a Guyanese, Dr Bertrand Ramcharan, Barrister-at-Law, Commissioner of the International Commission of Jurists, Member of the Permanent Court of Arbitration, and Fellow of the London School of Economics and Political Science. Ramcharan is the author of a 2009 Sourcewatch report ‘SPN: The $83 million Right-Wing Empire helping to hijack State politics and Government’.2 1 The Guyana Court of Appeal The book’s ten chapters introduce Guyana’s Court of Appeal to a wider public and includes chapters on the role of the Guyana Court of Appeal; the legal profession; the Rule of Law; fundamental rights; sources of law; the criminal law; law of torts; law of contracts; and property law. The Supreme Court of Judicature consists of a Court of Appeal, a High Court and several courts of summary jurisdiction. In February 2001, the Guyana government signed an agreement, along with nine others, establishing the Caribbean Court of Justice to replace the UK’s Privy Council. This is a vastly important step that Guyana has taken since the UK Privy Council is, in theory, the principal council of the British Crown and consists of persons nominated by the Crown to the office. This Court of Justice began to sit in 2003. By disregarding the United Kingdom’s Privy Council, Guyana has placed itself out of reach of English jurisdiction some thirty years after its independence from colonialism. The Privy Council is noted as being ‘a great council of State held by the sovereign with her councillors, to concert matters for the public service, and for the honour and safety of the realm.’3 The number of persons incarcerated in prisons in Guyana amount to less than 2,000.4 From English common law to modernity The author in his preface explains that for the decades since this country’s independence from the United Kingdom in 1966, the courts of Guyana have charted a course for the rule of law, maintaining the core protections of the common law as imprinted by the law of the United Kingdom, modernising this where necessary to meet the conditions of a progressive, developing society, as Guyana’s is. Dr Ramcharan uses the Guyana Court of Appeal as a vehicle to examine the rule of law in a developing country and chose the criminal law; law of contracts; law of torts and property law to demonstrate the rule of law in these non-political areas of law, admitting the sometimes absence of the protection of human rights for example, article 21 (1) of the Universal Declaration of Human Rights (‘UDHR’), which states that ‘everyone has the right to take part in the government of his country, directly, or through freely chosen representatives.’ Co-operative Republic of Guyana An introduction to the country of Guyana was a good start. Guyana has a population of less than one million people in total and is the size of four times the size of the United Kingdom (‘UK’). Some have said that Guyana is the size of Idaho in the United States. Guyana is situated on the northern coast of South America east of Venezuela, west of Suriname, and north of Brazil. A tropical forest covers more than 80% of the country. 2 Source: Google Guyana’s history Guyana was first invaded by the Dutch West Indian Company having its own indigenous population, the Warrou people. Source: Google The Dutch, English, and French established colonies in what is now known as Guyana, but by the early 17th century the majority of the settlements were Dutch. During the Napoleonic wars Britain took over the Dutch colonies of Berbice, Demerara, and Essequibo, which became British Guiana in 1831 just before slavery was outlawed in 1834. The territory was ‘captured’ by Britain to whom it was ceded in 1814 and named British Guiana. African slaves and indentured Chinese and Indians African slaves were transported there to work the sugar plantations and in the 18th Century. The great need for plantation workers led to a large wave of immigration, primarily of East Indians. East Indian and Chinese2 were transported to British Guiana as ‘indentured labourers’. 5 Politics 3 From 1950 politics took over and the People’s Progressive Party (‘PPP’), led by Dr Cheddi Jagan and by Mr Forbes Burnham. In 1961, Mr Forbes Burnham formed the People’s National Congress (‘PNC’) when internal autonomy was granted. In 1966 British Guiana became known as Co-operative Republic of Guyana and the country became an independent member of the Commonwealth. A new Constitution in 19806 Mr Forbes Burnham was voted in as the first Prime Minister and later, the President of Guyana. In October 1980 a new Constitution was agreed and with it, an Executive Presidency and a National Assembly of 53 elected members and 12 members appointed by the Regional Authorities. Elections for five-year terms are held under the single-list system of proportional representation, with the whole of Guyana forming one electoral area and each voter casting a vote for a Party List of candidates.7 Fraudulent elections in Guyana? In Chapter 3 at page 35 of The Guyana Court of Appeal, Dr Ramcharan asserts that this 1980 constitution ‘ is a nullity and that the independence constitution previously in force, remains valid and should be reinstituted on the basis of the legal doctrine of prospective limitation, in respect if future actions of the legislature of the executive.’ Based on a report by the Guyana Committee of Concerned Citizens which called the action ‘massively fraudulent’, because the national turn-out of voters was 14.01%? Dr Ramcharan asserts that this violates the 1948 United Nations Declaration of Human Rights and article 1 of the International Convention on Economic, Social and Cultural Rights, taking as precedent the 1997 Constitution of Fiji8. It is usually accepted that English law is not proactive unless it is so specifically stated. The rule of law as it impacts internationally began, so it is said, with the Treaty of Westphalia of 1648, when modern nations began constructing rules to govern their reciprocal rights and obligations.9 Writings about forfeiture: the Fiji case The Guyana Court of Appeal considered whether it should decide on the matter and having so decided, it reached a decision that the constitution was legal after all, taking into account court decisions and academic writings on the issue of acquiescence. It is to be noted that in the Fiji case the applicant sought the following orders (page 38, Chapter 3): that the attempted coup in Fiji on 19 May 2000 was unsuccessful; that the declaration of a State of Emergency under the doctrine of necessity was unconstitutional; that’ the revocation of Fiji’s 1977 Constitution by decree by the Interim Military Government was unconstitutional; that the elected government of Fiji was still legally constituted and still the legitimate government of Fiji. The Fiji Court of appeal decided however, that the 1997 Fiji Constitution remained the Supreme law of the Fiji islands; and that the Fiji Parliament had not been dissolved and that because the Fiji president had resigned, it was for the Vice-President to perform the functions of the President, in accordance with section 88 of the Fiji constitution’. In the Fiji case, the Court of Appeal said in its decision in Madzimbambuto v Lardner-Burke (1969) 1 AC 645 (Privy Council), that the regime of Ian Smith in Southern Rhodesia was illegal, although the regime Mass torts would have been initiated in developed countries In the Philippines on 16th November, it was reported that the number of people injured due to the typhoon stood at 12,487, while 1,187 people are officially listed as missing. In all, more than nine million people had been affected, including 1,871,321 who have been displaced. The United Nations put the number of dead at 4,460. Officials said it was likely more bodies would be found as aid teams reached outlying areas. Helicopters from a US aircraft carrier have been transporting supplies to the devastated town on the Pacific coast - the first to take the full force of the ‘Typhoon Haiwan’.10 There is hardly ever any news of Guyana’s disasters in the world-wide news and the media are quick to exploit its jungles to make entertainment programmes of forages into the jungle- as Sunday evening fodder in England. The Pakistan case 4 In State v Dosso (1958) 2 PSCR 180, the President had issued a proclamation annulling the then existing Constitution of Pakistan. The Grenada case In 1979, a coup overthrew the government of Grenada.11 In Mokotso v His Majesty King Moshoeshoe12, the court said that the burden of proof of legitimacy must always rest upon the new regime. Syria’s coup today This illustrates parallels with today’s issues in Syria and other recent coups and also rings true of the late Professor Glanville Williams’ observation that ‘judges are strongly influences by their own ideas of what conduct should or should not be allowed, thus engaging in extending and creating new law.’13 Social statistics and ethnicity in Guyana Forty years after Independence, some of Guyana’s relevant social statistics14 were as below: Per 1000 Guyanese Birth rate 34.7 Infant mortality 56.0 Fertility rate 2.3 Death rate 8.6 The ethnicity of Guyanese is mostly East Indians, followed by Africans, those of mixed race, the original Amerindians and one percent of others.