The Bar Council of the Bar Association of Guyana notes the remarks of His Excellency the President of Guyana on 19 July 2017 concerning the judgment of the Chief Justice in Marcel Gaskin’s recently concluded application for declaratory orders.
Mr. Gaskin, in proceedings commenced on 20 March 2017, asked the Court to make certain declaratory orders on the meaning of Article 161(2) of the Constitution, which provides for the appointment of the Chairman of the Elections Commission. Those proceedings came to an end on 17 July 2017 when the Chief Justice made declaratory orders.
At the swearing-in ceremony of Judges on 19 July 2017, His Excellency said “The Chief Justice gave an appointment based on her perception of the law and I will continue to act based on my perception of the Constitution…”.
In addition, as to providing reasons for rejecting names on a list submitted to him forpossible appointment to the post, His Excellency said “If you can show me the article of theConstitution which requires me to give reasons, I will comply with the Constitution but I will not do what the Constitution does not require me to do”.
The Bar Council notes that declaratory orders made by the Chief Justice, based on Her Honour’s application of principles of law, are not interpretations or opinions but, like all other orders of court, are pronouncements of the law made in formal proceedings on a particular legal state of affairs.
The leading legal treatise on this type of order describes the effect of a declaratory order in the following terms:
…whilst the defendant is assumed to have respect for the law, justice does not rely on this alone. A declaration by the court is not a mere opinion devoid of legal effect: the controversy between the parties is determined and is res judicata as a result of the declaration being granted. Hence, if the defendant acts contrary to the declaration, he will not be able to challenge the unlawfulness of his conduct in subsequent proceedings.
The treatise makes it clear that the refusal to abide by a declaratory order may result in an order to enforce the rights established by the declaration. The Bar Council is confident that, like in every other society which respects and safeguards the rule of law, the State will abide by the declaratory orders made by the Chief