The Judiciary and the Emerging Principle of "interest & spirit of the Constitution"
Professor R. W. James*

It is a pleasure to be invited back in PNG after an absence of 7 years, and an honour to be here on this auspicious occasion. My delight increases when I recall that I was the Dean of the Faculty in 1993 when Sir Arnold Amet was appointed Chief Justice and, shortly after that occasion, I had the good fortune of petitioning the Senate of the University of Papua New Guinea and successfully arguing the case for the award of his LL.D degree. I am reminded by the organizers of this conference that, on that occasion, I attempted to distill from his judgments (for he was hitherto a judge for 10 years) his philosophy. I hope it was in a judicious manner that I anticipated developments in the legal system by using his philosophical outlook as a guide. I entertained no thought that these could be used as a benchmark of his success as Chief Justice1. Be it as it may, the major themes which form the focus of discussions2 suggest two days of debates that will be both analytical and thought-provoking.

Being outside the mainstream of academia, local and international, after retirement, I am now in unfamiliar territory particularly, as you know, that law has the capacity to grow and under Sir Arnold’s leadership, the growth has no doubt been by leaps and bounds. In the circumstances I am grateful to the organizers for their dispensation and their accord to me of the privilege to be general in my presentation rather than particular, comparative, rather than local, and to adopt the technique of cross-fertilization and the sharing of ideas. A process which I hope will prove mutually beneficial.

I set out to examine issues concerning the functioning of the judiciary. These preoccupy our two regions, the Caribbean and the Pacific. Specifically I make comparison between Papua New Guinea and Guyana in their treatment of these issues showing clearly a bias for PNG law. The reasons for this will become apparent as I make my presentation. The topics I have selected for discussion are limited. Namely, judicial integrity and judicial activism. The underlying theme is the principle of constitutionalism, and the major premise is that the judiciary has an important role to play in its realization.

In resolving these issues, I sought guidance from the Papua New Guinea experience. In the case of judicial integrity, from the judgment in Nahau Rooney’s case.3 On that of judicial creativity, I examined, inter alia, the role of the courts to protect the democratic processes (e.g. governmental succession). Sir Arnold’s judgment in Wingti’s case4 being the best example of the adaptation of law to the crises of our political process.

One can, however, only appreciate the deficiencies of the Guyanese legal system if one is conversant with the fundamentals of the constitutional social and political history of the society. I will address these initial concerns using Professor McIntosh’s concept of "patriating the constitution" a concept he discussed in his recent publication: Caribbean Constitutional Reform. Rethinking the West Indian Polity5.

Patriating the Constitution

Law and the constitution do not exist in a vacuum, but rather exist in, and to serve society. The failure of the legal system is more often a failure by the founding fathers to realize this fact as an essential quality of constitution making. Our constitutions define first and foremost national sovereignty. It is assumed by Caribbean jurists that there are only two ways of acquiring sovereignty: by force and/or threat of force, and by transmission or devolution6. The former includes conquest (or war), cession or occupation (pre colonial occurrences) and revolution in the Kelsenian sense. The process of constitutional devolution has been the norm in the Caribbean in effecting the change from colonial status to independence. Whilst sovereignty acquired through the former sources is total or unlimited, the latter is incremental, with a final stage being that of patriation which, in the Caribbean context, is localizing the constitutional instrument, abolishing appeals to the Privy Council and adopting a republican status7.

The patriation of the Caribbean constitutions still remains a goal and is not yet a reality, that of the Cooperative Republic of Guyana being the only exception8. I would like to think that the current political and legal agitation for change in the Caribbean countries springs more from what Professor McIntoch expresses as "rethinking [in the West Indian Polity]" and less from penchant at the Privy Council’s consistency in reversing judgments of the local appellate courts which uphold the death penalty9. I am referring to the movements to establish a Caribbean Common Market and Caribbean Court of Justice. The latter will have original jurisdiction in interstate conflicts and will be the final court of appeal from Caricom states. 

PNG’s experience has shown another method of acquiring sovereignty i.e. by the process now referred to as autochthony. A hallmark of this process is the tailoring of the constitution to the nature and aspiration of the society (the home grown constitution), and severing all external legal linkages. This process has a distinct advantage over the devolution process for it transcends the limitations on devolution10 which characterize the latter. The importance of this method of constitution making, which in PNG has produced a constitution reflective of society’s hopes and aspirations as articulated by the Constitution Planning Committee,11 and one that confronts the fears in society, lies in substance, not in form, for the Constitution is the supreme law of the State.

Our Independence Constitution (1966) in Guyana was a handed down constitution and was in the mode of the Westminster model, and our Socialist Constitution (1980) was neither home grown nor autochthonous. Our society was and still is plural, at best, (Amerindians, Indo-Guyanese, Afro-Guyanese, Chinese, Portugese and other Europeans), but in reality is bifurcated by two ethnic groups (Indo Guyanese comprising 43 percent and Afro Guyanese 34 percent of the population). Since 1957 ethnicity has played the dominant role in politics and economics, and has so continued. Our experience has been that the Westminster system and concepts of representative democracy which thrive on the maxim of "winner takes all" and "majority rule" are recipes for disaster in an ethnically divided society. The perception of the Afro Guyanese is that he is wedged in a system which is buttressed by the Constitution which vests unbridled power in the ruling party (the lndo Guyanese, who are the majority racial group in power). This excludes him (the Afro (Guyanese) from economic and social advancement. It became evident to him after the results of three elections: 1992, 1997 and 2001 that with the population composed as it is, and a practice of ethnic voting, he will be perpetually relegated to what Dr. Jagan graphically referred to as "the bottom of the ladder".

On the other hand, Indo Guyanese have traditionally been a minority in the state services, particularly the disciplined forces. The government has recently addressed this problem by the adoption of a policy of affirmative action, a process which could be hindered by a constitution which guarantees the principle of non—discrimination. Although the constitution makes exception for disadvantaged groups, it is doubtful whether it countenances affirmative actions. But even if there is a case for affirmative action, it is in the interest of the stability of the society that it goes beyond the interest of Indo Guyanese. It is instructive to recall the policy adopted in PNG of giving preferential treatment in commerce and industry to automatic citizens for ten years after independence, that is, from 1975 to 1985. This could redress the inherited imbalances in commerce and industry. We must start with the procurement of government contracts which has been a cause of grave anxiety to the Afro Guyanese community. We must heed the warning of sociologists of a danger of consolidating economic and political power in one ethnic community in a multi ethnic society12. It invites instability! 

In short, ‘patriating the constitution’ cannot end with the abolition of the monarchy and appeals to the Privy Council but is best achieved by autochthony that is, a constitution that addresses the social and economic realities of the society.

Integrity of the Judiciary

An independent judiciary has not been, historically, a fundamental of Guyana’s political and legal culture. The colonial judiciary served the interest of’ the colonial power, and though the independence constitution was structured on the Westminster model and embraced the concepts of the independent judiciary and separation of powers, it was short lived and replaced by a socialist constitution which encapsulated the executive Presidency. As an independent judiciary is a threat to an authoritarian regime, the insubordination of the judges to the executive was an objective to be realized. The executive devised various means to achieve this objective, and one Chancellor used the constitution to articulate a theory of the socialist judge who is expected to act in unison with the executive in the implementation of the goals in the constitution13. The judiciary thereby assuming, in Bacon’s imagery, the role of the ‘lion beneath the throne’.

With the commitment to democracy in 1992 by the new ruling Party, one expected a transformation of the judiciary, but there were many impediments to change. Foremost was the constitution itself which promoted authoritarianism in the appointment and promotion of the judges. Secondly, the executive adopted a new strategy of embarrassing the judiciary by publicly flouting its orders or making derogatory allegations of’ the members, with no tangible evidence in support. For example, for Mrs. Jagan at her swearing-in ceremony as President to throw away the Chief Justice’s order granted to restrain her premature assumption of office, and for her to proceed with the ceremony, were acts calculated to publicly undermine the authority of the Courts. These acts are just as demoralizing as that of President Burnham, who summoned the judges to his private residence to castigate them for making decisions with which he was unhappy.

For the government, as a party to litigation, to consistently disregard the courts’ decision to reinstate dismissed workers or pay compensation for its tortious acts, is to invite protest actions and demonstrations by concerned groups in the precincts of the courts. The vituperations of Dr. Luncheon, Secretary of the Cabinet, of poor work ethics and corrupt practices in the magistracy14 with no tangible evidence to support his allegations, are equally an insult to the Magistrates and "contempt" of the court system. His actions approximate that of President Babangida in the Fela Kuti/Okoro incident, where the President with no just reason other than to obtain political mileage and to discredit the Nigerian judiciary, publicly and falsely accused Judge Idogu of judicial impropriety in the Fela Kuti trials. Judge Idogu’s observations on this incident are apt and worth remembering:

"If you batter at one wall in a house, even if that wall does not fall down, you can do damage to other walls and to the house"15. 

Mr. Justice Brandeis of the US Supreme Court cautioned that political leaders cannot practice lawlessness and expect citizens to be law abiding, for -

‘‘Government is the potent. The omnipresent teacher for good or ill, it teaches the whole people by example16."

Our own Chancellor Desiree Bernard, adopting Lord Denning’s aphorism in her judgment in Nortons case cautioned: "Be ye ever so high, the law is above you17." And Mr. Justice Saldanha in PP v Rooney, whilst sentencing the Minister of Justice to 7 months imprisonment for her contempt in scandalizing the Courts and Judges, held, in a passage memorized by a generation of law students:

"She ... dare to pit her puny might... against the majesty of law and justice which the people of this country had freely adopted as their own. And for this she must now be visited with condign punishment as retribution for herself and a deterrent for future would-be offenders18."

The constitutional reforms of 2001 in Guyana aimed at the realisation of an independent judiciary, and one less dependent for its finances on the government of the day. It is provided as follows:

(1) appointments to the highest judicial offices should he made by the President only after he has obtained "the agreement" of the Leader of the Opposition on the nominee (art 127);

(2) the President in appointing Puisne Judges must act "in accordance with the advice" of the Judicial Service Commission (art. 128): and

(3) overarching provisions to guarantee the financial autonomy of the judiciary (art. 222).

None of these reforms has been effectively implemented to date, the third year after the constitutional amendments. With reference to para (1) the ruling and opposition parties cannot agree on a formula to resolve any deadlock (which will be the norm) in the decision making process. In relation to para (2), the President has already refused to make an appointment recommended by the Commission, this matter is sub judice19. In relation to (3) the Registrar’s Annual Reports, the latest of which I have seen being 2002, attest to the fact that she continues to draft the judiciary’s budget which is presented to parliament by the Minister of Finance through the ordinary route.

The formula: "acting on advice", "in accordance with the advice" and "in accordance with", have been interpreted in PNG as giving the Head of State no room for independence in these matters. The answer as to whether the exalted position of the Executive President who combines the functions of the Head of State and Head of Government in the Guyana Constitution, should make a difference in interpreting these provisions, should be guided by reference to the spirit of’ the Constitutional Reforms. The reforms aimed at transforming an authoritarian into a democratic state and, we are told, at setting out the foundation for "inclusive governance" i.e. decentralizing decision- making in the process of governance. Article 111(2) states very clearly that he hasn’t the final say.20

The intention of the amendment incorporating the overarching provision is to adopt the practice now entrenched in PNG whereby the judiciary drafts its own budget, which is presented to Parliament via the Speaker. The members of Parliament, free from party influence, determine the quantum.21

The lethargy of the Guyana judiciary in implementing the budgetary reforms is inexplicable. This could he attributed to the demoralization of the society. An independent report by the World Bank has signaled that there is a crisis of governance which impacts negatively on the judiciary. Consequently the 1DB has provided funds for the establishment of a Commercial Court and an Alternative Dispute Resolution Mechanism outside of the mainstream of the formal system, in order to inject confidence in the investment and commercial sectors of the economy. The project profile is explicit on the current state of the judiciary22.

The Guyana judiciary has failed miserably to provide individual justice, and, equally depressing, to perform its constitutionally assigned role as the third branch of government.

Judicial Activism

From a jurisprudential and sociological perspective, the most important function of the judiciary is to interpret and apply the law in a manner consistent with the ethos and aspiration of society. In carrying out this function courts are characterized as being conservative or activist. Judicial conservatism represents adherence to the "letter of the law" in interpreting the constitution. It signifies a commitment to legality or constitutionality. The application of principles of "judicial restraint" and "locus standi" is a central feature of the judicial process.

Conservatism is defended on grounds of "conflict avoidance" (with the executive and legislature). There is the philosophical argument that judges ought to avoid "judicial legislation’’ in the guise of "judicial interpretation" (jus dicere not jus dare).

Activism, on the other hand, is such interpretation to reflect society’s changing values including the protection of its democratic processes. In constitutional interpretation this has been expressed as the "purposive interpretation" by the Privy Council in Minister of Home Affairs v Fisher23, an approach commended by Judge Barnett in the Simbu Provincial Executive case24 as the "primacy of spirit of the Constitution" over its "black letter". Judge Barnett further advises that it is an essential prerequisite for the judicial mind to be enlightened by the spirit of the Constitution itself25.

The Indian judiciary is well known for its activism in both social action and public interest litigation. The constitution and in particular the human rights provisions are interpreted to accord new rights to counteract new wrongs26. In contrast the Guyanese Courts were particularly notorious for their narrow-mindedness in interpreting human rights provisions in the constitution27. The famous Australian case of Mabo v Queensland (No. 2)28 where the High Court of Australia reinterpreted aboriginal land rights in 1992 in a manner consistent with contemporary values, remains the high water mark of judicial activism.

The protection of the democratic process viz constitutionalism, featured more in Papua New Guinea law than that of Guyana. This is explicable from the fact that there is in PNG a greater concern in guaranteeing the integrity of the political process by Collective Responsibility and the Leadership Code. In the last two decades, for example, there have been no less than 9 votes of no confidence on the PNG governments29 and numerous prosecutions under the leadership code. The corresponding numbers in Guyana were nil. This is due to the non-functioning of both the systems of ministerial responsibility and the Ombudsman. Executive misdemeanors have therefore been to a large extent uncontrollable and irredressible in Guyana.

It leaves me to discuss an area of political confrontation in the democratic processes in both countries, which has inspired judicial activism. This is with reference to governmental succession. The more recent phenomenon of executive misfeasance through the promotion by the Executive or its members of acts which are illegal and unconstitutional in municipal law and criminal in international law, poses questions of limitations on the legal control of the executive, and is referred to below.

Governmental Succession

The Constitution defines the processes for change of government which are largely through the electoral process. These, however, include the premature removal of the head of government for incapacity or misconduct. Remove-ability on a vote of no-confidence is an aspect of the concept of collective responsibility which I have stated is not uncommon in PNG but highly theoretical in Guyana despite article 107(6) which was introduced by the constitutional amendments of 2000, acknowledging the no-confidence voting process.

Governmental succession has become one of the most controversial processes in our democracy. In Guyana the phenomenon of rigged elections loomed large, but whilst there is now a commitment to free and fair elections as in PNG, both countries have had to confront issues which threaten the democratic process. These arose from the anxiety of politicians to access power and/or retain it by any means.

The Constitutions specifically guarantee every citizen a right to participate in the election process and to stand for political offices. Legislation which directly or indirectly limits these rights by for example, imposing an exorbitant nomination fee (as a condition for being a candidate)30 or establishing, as a qualification to vote ‘the possession of a voters’ ID Card, amounts to a ‘prior restraint’ and is therefore bad31.

The much topical case of Haiveta v Wingti32 involved an attempt of the Prime Minister to manipulate the Constitution to remain in office in the face of an anticipated no-confidence vote in Parliament. The facts of the case are that the constitution barred any no-confidence vote on the Government within 18 months of it assuming office. On approaching the 18 months period Prime Minister Wingti attempted to trigger a renewal of the 18-month grace period by resigning as Prime Minister on 23rd September 1993 and then being re-elected by Parliament on the next day, 24 September. The issue which came before the Court was confined to the narrow question of whether the Prime Minister’s re-appointment on 24th September occurred on ‘the next sitting day" of Parliament after the vacancy in office arose, as required by s. 142(3) of the Constitution33.

On a literal interpretation there is little doubt that because the vacancy arose when the Prime Minister resigned and the next sitting day was the 24, the re-appointment was valid. But Chief Justice Amet creatively referred to the "general spirit behind the framing of the Constitution", finding guidance from the Independence Constitution- makers in their deliberations over the final version of the Constitution, which was eventually enacted. The Chief Justice on that basis held that "the next sitting day" means not the day after the vacancy arises, but the day after the Speaker informs Parliament of it.

Dr. Omar was critical of the Supreme Court for entertaining jurisdiction "on ground that the issues raised in that case were political in nature and should have been resolved in the political forums". He cautioned for "judicial restraint" in order to guarantee credibility of the judges in the eyes of all political groups34.

This conservatism has been a dominant feature of the common law and it has worked to protect Cabinet decisions on matters of policy from judicial scrutiny35. The landmark ruling of the Privy Council in the Barbadian case of CO Williams Construction Ltd v Blackman36’ shattered the myth of non-review-ability of Cabinet decisions. There the Privy Council, overruling the majority decision of the Barbadian Court of Appeal, held that the decision of the Cabinet, not to award the appellant company a contract for the construction of a highway, was justiciable. Justiciability was based on any ground sufficient to impinge an administrative decision (such as bad faith, failure to observe procedures required by law and so on).37

Conclusion

This lecture is partly about judicial inertia and partly about judicial activism, It specifically addresses the principle of constitutionalism. It is implicitly argued that where the political and formal constitutional processes fail to ensure executive accountability, the Court is justified in adopting a principle of fraudem legem. This, however, remains a controversial instrument of control, for it could involve the courts in politics. Its justification has been the vacuum created by the breakdown of the traditional institutions which left democratic constitutionalism valueless.

Courts have successfully resolved the issue of legality, where those purporting to govern acquired power by revolutionary means. Judges, and particularly JOF Haynes, set out the principles of ‘revolutionary legality’.38 There are new executive outrages which courts might have to grapple with one day, maybe sooner rather than later: acts of the Executive which are illegal and unconstitutional in municipal law and criminal in international law. I refer to the notorious act of the Chan’s government in 1997 in recruiting clandestinely, foreign mercenaries for deployment in Bougainville against the secessionist, the sandline affair. In Guyana, there are allegations of the Home Affairs Minister being responsible for recruiting, arming and financing a death squad (called locally the ‘Phantom Squad’) responsible for over 100 extra-judicial killings over a two-year period (2002 and 2003).

Both incidents evoked the ire of foreign governments. (In the case of PNG-Australia, New Zealand, Solomon Islands and the UK; in the case of Guyana-Canada, U.S.A. and UK) and international organizations (Amnesty International). The former culminated in the Prime Minister demitting office after being given an ultimatum to that effect by the Commander of the Army. The government of Guyana had rejected popular demands for an independent inquiry into the existence of the death squad, but in the face of international pressure it established a 3-member commission to inquire into whether the Minister is involved.

Whether such incidents are justiciable must necessarily be problematic. The Supreme Court of PNG took a liberal approach to the issue of locus standi in the Somare case39. There it held that the Petitioner, the Leader of the Opposition, had standing to apply to the Court for a determination of the constitutional validity of the Defence Force (Presence Abroad) Act 1980 and the act of’ the government in sending members of the Defence Force to Vanuatu for peace keeping purposes.

The influence of the autochthonous nature of the Constitution on the decision is apparent in the holding of the Chief Justice:

"The Constitution of this country provides that all power belongs to the people. These powers are then given to three bodies, the National Parliament (legislative power), the Executive (the Executive Power) and the Judicial System (the judicial power). These powers are given with the clear understanding that they be used properly and constitutionally... The People, repository of all powers in Papua New Guinea, have, through the Constitution, directed that the Parliament make laws which comply with the Constitution. If the legislative power is exercised contrary to the Constitution, why should not the People come to this court and complain? After all it is their power and they are in my view, entitled to complain to the Supreme Court, in whom their power to determine the Constitutionality or otherwise of an Act of’ Parliament is vested. As a beneficiary in trust is entitled to invoke the powers of’ the courts to ensure that the trustees act in their interest so should the People whose legislative power the Parliament exercises, complain to this court if they think the Legislature acts contrary to the Constitution through which their power has been given to it."40

The incidents discussed above in the text, raise questions of public interest and social action litigation in municipal laws, in international law, that of international crimes, and they are not discussed here.