The Guyana Court of Appeal

234 Pages·2002·2.8 MB·English

by  Ramcharan

THE GUYANA COURT
OF APPEAL
Cavendish
Publishing
Limited
London • Sydney

THE GUYANA COURT
OF APPEAL
THE CHALLENGES OF THE RULE OF LAW IN A
DEVELOPING COUNTRY
Dr Bertrand Ramcharan, LLM, PhD
Barrister-at-Law (Lincoln’s Inn),
Commissioner of the International Commission of Jurists,
Member of the Permanent Court of Arbitration,
Fellow of the London School of Economics
and Political Science (LSE)
Cavendish
Publishing
Limited
London (cid:127) Sydney
First published in Great Britain 2002 by Cavendish Publishing Limited,
The Glass House, Wharton Street, London WC1X 9PX, United Kingdom
Telephone: [phone] Facsimile: [phone]
Email: [email protected]
Website: www.cavendishpublishing.com
© Ramcharan, Bertrand 2002
All rights reserved. No part of this publication may be reproduced, stored in a retrieval
system, or transmitted in any form or by any means, electronic, mechanical,
photocopying, recording, scanning or otherwise, except under the terms of the
Copyright Designs and Patents Act 1988 or under the terms of a licence issued by the
Copyright Licensing Agency, 90 Tottenham Court Road, London W1P 9HE, UK,
without the permission in writing of the publisher.
British Library Cataloguing in Publication Data
Ramcharan, BG
The Guyana Court of Appeal: the challenges of the rule of law in a developing country
1 Guyana Court of Appeal 2 Criminal law—Guyana
I Title
345.8'81'01
ISBN 185941 686 1
Printed and bound in Great Britain
CONTENTS
Preface ix
Introduction xi
The Challenges xix
The Guyana Court of Appeal xxi
List of Chancellors of the Judiciary, 1966–2000
List of Justices of Appeal, 1996–2000
Selected Decisions of the Court of Appeal xxiii
Table of Cases xli
1 THE ROLE OF THE GUYANA COURT OF APPEAL 1
INTRODUCTION 1
2 THE LEGAL PROFESSION 17
INTRODUCTION 17
CONCLUSION 32
3 THE RULE OF LAW 33
INTRODUCTION 33
THE ILLEGAL CONSTITUTIONAL GROUNDNORM 33
COMMONWEALTH JURISPRUDENCE ON CONSTITUTIONAL
VALIDITY 36
FRAUDULENT ELECTIONS AND OPPRESSION THROUGH LAW 67
THE JURISPRUDENCE OF THE COURT OF APPEAL ON THE
RULE OF LAW 71
CONCLUSION 88
4 FUNDAMENTAL RIGHTS 89
INTRODUCTION 89
MASSAH’S RULE, 1966–92 89
THE OPENING 92
CONCLUSION 95
5 SOURCES OF LAW 97
INTRODUCTION 97
SOVEREIGNTY 97
LEGISLATION 97
THE PRINCIPLES OF NATURAL JUSTICE 98
INTERNATIONAL STANDARDS 99
THE WRITINGS OF PUBLICISTS 99
CONCLUSION 100
v
Contents
6 CRIMINAL LAW 101
INTRODUCTION 101
THE MAJESTY OF THE LAW 102
THE PROVINCE OF THE JURY 103
THE CONSCIENCE OF THE GUYANESE NATION AND THE
SENSITIVITIES OF THE WORLD 104
FUNDAMENTAL PRINCIPLES 105
SELF-DEFENCE 106
PROVOCATION 106
IDENTIFICATION 107
CONFESSION STATEMENTS 112
EVIDENCE 113
SENTENCING POLICY 113
RETRIAL 114
CONCLUSION 115
7 LAW OF TORTS 117
INTRODUCTION 117
PLEADINGS 117
CONCLUSION 122
8 LAW OF CONTRACTS 123
INTRODUCTION 123
REPUDIATION OF CONTRACT 123
VARIATION OF CONTRACT 124
SPECIFIC PERFORMANCE: HARDSHIPS SHOULD BE JUDGED
AT THE TIME OF CONTRACT. 124
TRAVEL TAX ON AN UNUSED AIRLINE TICKET SHOULD BE
REFUNDED 126
CONCLUSION 127
9 PROPERTY LAW 129
INTRODUCTION 129
RIGHT TO PROPERTY 129
TITLE TO, PRESCRIPTION, LIMITATION AND POSSESSION
OF LAND 132
LEGAL EFFECT OF A MORTGAGE DEED IN GUYANA 137
CONCLUSION 137
vi
Contents
10 CONCLUSION 139
Appendix A 141
Appendix B 149
Appendix C 161
Appendix D 169
Appendix E 171
Bibliography 177
Index 181
vii

PREFACE
Developing countries the world over are struggling for decent life-chances for
their peoples in difficult global conditions. The international economic order
presents many difficulties to them in their quest for development. For the peoples
of many developing countries the right to development is still only a mirage.
Economic, social and cultural rights, as well as civil and political rights, remain
illusory for millions throughout the world.
In these circumstances, governance takes on a particularly crucial significance
for the peoples of the developing countries. It is through good governance that
a people can efficiently utilize its national resources with a view to giving the
best chances possible to every member of the polity. It is by demonstrating good
governance that a people can stake a claim to international equity and to
international co-operation.
The rule of law is at the base of good governance, of democracy and of
respect for human rights. It is also the starting point for development efforts
in any country. The rule of law is thus a topic of strategic significance for
every country, and particularly for every developing country. The breakdown
of the rule of law has led to the impoverishment of too many developing
countries.
With this in mind, it is essential to draw lessons on how the rule of law has
fared in the countries that achieved their independence as part of the process of
self-determination launched by the United Nations Charter. When the United
Nations was established in 1945, it had just over 50 member countries. Today,
it has nearly 200. The majority of these are developing countries whose peoples
still aspire to decent life-chances.
In order to be able to provide better life-chances to the peoples of the
developing countries, studies of how the rule of law has fared in those countries
take on particular urgency. In this work, we look at the fate of the rule of law in
one such country, Guyana, which achieved its independence in 1966 and which
took on republican status within the Commonwealth a decade later.
For four decades the courts of Guyana have had to chart a course for the rule
of law in a newly independent country, maintaining the core protections of the
common law and modernizing the common law where necessary to meet the
conditions of an evolving developing society. They have had to wrestle with the
challenges of governance and power sharing in a multi-ethnic country with six
races which aspire to a future ‘one nation, one people’.
The travails of the rule of law in a developing country are examined in this
work through the lens of its highest court, the Court of Appeal. The peaks and
valleys of the rule of law are revealed when it comes to democracy and human
rights. The brilliance of local lawyers is demonstrated in non-political areas of
the law, such as the criminal law, the law of contracts, the law of torts and
property law. The protection of human rights is shown to have been victim of
the vagaries of political benches.
ix