Judges’ Decision are not Sacrosanct: Their Decisions can be Criticised

Jul 15, 2022 Letters

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Dear Editor,

Any lingering doubt or indecisiveness as to whether Judges’ decision should be subject to public criticism has been further eroded with the relentless barrage of criticisms and demonstrations that erupted with the overturning of the 1973 Roe vs. Wade decision that had made abortion a right. The US Supreme Court’s majority holds that abortion is not a federal constitutional right and that abortion should properly be a matter for the State and its voters to regulate.

Demonstrators and social rights’ activists have categorically condemned the July 2022 ruling claiming that it would damage the reproductive rights of women, including their right to privacy. Their revulsion has also been shared by top Democrats who regard the US Supreme Court’s ruling as exceeding its power. US President Joe Biden blasted the decision and referred to the Conservative Judges of the Court as ‘extreme.’ In defiance, he has issued an Executive Order to work around the ruling, but experts doubt whether that would mitigate the problem.

And Liberal Democrat and Senate Majority Leader Mr. Chuck Shumer joined the picketers outside the Supreme Court to launch a trenchant critique on the Judiciary, singling out the Conservative Judges with his vitriolic onslaught. Another Liberal Democrat Pete Buttigieg, the US Transportation Secretary, defends the right to criticise Judges’ rulings but cautions that protests should be peaceful. He asserts that public officials [inclusive of Judges] will “never be free of criticism or peaceful protest” from individuals exercising their rights to freedom of speech.

In the land that is regarded as the bastion of democracy, the leader of the free world, and the centre of capitalism, citizens are allowed to criticise the decisions of the Judiciary and to display their disenchantment at peaceful protests. Given that Guyana is more aligned to the US than the UK in terms of democratic norms and ideals, the logical question then is: “shouldn’t Guyanese equally show their disapproval through criticisms and demonstrations for Judges’ rulings especially in public interest cases (such as abortion, capital punishment, constitutional violations, infringement of fundamental rights, etc.) that they perceive or regard as repugnant?” The answer could be unlocked with a review of two significant constitutional cases.
Why should Guyanese citizens remain silent when someone was unilaterally appointed in October 2017 as GECOM chair in defiance of the Carter-Price constitutional formula that has worked well for over 22 years? Had it not been for the Caribbean Court of Justice (CCJ) that over-ruled in June 2019 the decision of the Guyana Court of Appeal, Guyana would have fallen prey to another PNC dictatorship.

In another glaring constitutional aberration, the Guyana Court of Appeal ruled in March 2019 that 33 is not a majority of a 65-House Chamber. That decision stunned not only legal scholars but also mathematicians, as well as the common person. In June 2019, the CCJ over-turned the Guyana Court of Appeal’s decision indicating that 33 is a majority of 65. Again, the CCJ had to save Guyana’s fragile democracy. When Judges cannot determine that 33 is a majority of 65, don’t the public have a right to question their judgment and demonstrate their disgust?
This is the age of reason, logic, egalitarianism, and accountability. All institutions, including the Judiciary, are required to strive towards equity and accountability. And who better than the public to demand equity and accountability from the Court? Sovereignty belongs to the people (Chapter II Article 9) and not the Judges. The impending changes in the country’s legal and constitutional architecture that would work through the existing Law Reform Project and the Standing Committee on Constitutional Reform are not radical but evolutionary in nature.

The significance of legal/constitutional change has been beautifully captured by Karl Marx at his conspiracy trial in Cologne in 1849 captured this forcefully: “Society is not based on law, that is a legal fiction, rather law must be based on society; it must be the expression of society’s common interests and needs, as they arise from the various material methods of production… The Code Napolean, which I have in my hand, did not produce modern bourgeois society. Bourgeois society as it arose in eighteenth century and developed in the nineteenth, merely finds its legal expression in the Code…You cannot make old laws the foundation of a new social development, any more than these old laws created the old social conditions.”

Hopefully, all these potential changes would lead to the development of a coherent system of judicial philosophy. Such basic questions as “What constitutes justice?” have not been satisfactorily answered. “Is justice done or seem to be done,” when there are so many disparities in sentencing?
No institution in the modern world is insulated from change. Criticising Judges’ rulings or having demonstrations would not necessarily undermine the independence of the Judiciary. The constitution (Chapter XI 122 A (1)) does not explicitly prohibit public criticism or demonstration of Judicial decisions. Indeed, criticisms would allow Judges to apply greater analytic rigour to decision-making and to arrive at good judgments. Judges’ decisions are not sacrosanct. Their decisions can be criticised.

Dr. Tara Singh

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