Dear Editor,
Last Friday’s decision of the Chief Justice (ag.) in a case brought by Krystal Hadassah Fisher, a poor, ordinary woman voter from the hinterland, causes me serious concerns. That it may have been initiated and advanced by Forward Guyana Movement (FGM), one of the smaller parties contesting tomorrow’s elections, is irrelevant. The court’s language about “false assertion” and its description of the argument as a “grossly disingenuous” makes me understand why some legal personalities in Guyana who have participated in litigation in more civil jurisdictions, are unwilling to appear in our courts.
The applicant has already given notice of appeal, and the matter will be litigated further. But the issue that most troubles me is the cost of two million dollars which the court ordered the woman to pay, a sum perhaps many times her net worth. Worse, she has been given less than two weeks to produce the money.
Even if the payment will be borne by FGM, the decision does more than dispose of a case: it risks closing the doors of constitutional and administrative justice to all but the wealthy. It also flies in the face of the ruling by our highest court in Ramon Gaskin v Minister of Natural Resources [2024 CCJ 14 (AJ) GY], where the CCJ expressly refused to award costs against Gaskin even though he had lost at every stage of the case. The court explained that citizens who engage in public interest litigation perform a public service. That decision was notable in that the issue of cost was addressed by three of the five judges who presided over the matter.
My other concern is the approach by the local court in addressing the Krystal Fisher action. While I have not had the benefit of a reading of the decision, its approach appears at odds with the constitutional philosophy articulated in Minister of Home Affairs v Fisher [1980] AC 319, which Caribbean courts and the CCJ have consistently treated with deference. That case established that constitutions are sui generis instruments requiring generous, purposive interpretation to give life to citizens’ rights. In the Krystal Fisher case, the decision reflected a narrow, literalist approach that puts technical form over democratic substance.
Some in our society may prefer the fossilisation of the Burnham Constitution with its ambiguities, flaws, and dictatorial features. By punishing litigants who challenge those ambiguities, the Court unwittingly contributes to that fossilisation. Worse, the court seems unwilling to acknowledge the egregious and piecemeal drafting of our electoral laws. The principle of access to justice requires that no citizen should be penalised for ambiguities Parliament has failed to cure; the courts should be the first to highlight such deficiencies, not punish those who expose them.
Worryingly, this is not an isolated development. Only recently, a different court awarded costs of one million dollars against two citizens – including one politician – who had approached the court in good faith. The cumulative effect is unmistakable: a trend of punitive costs orders that discourage litigation brought by citizens. This risks making constitutional justice a privilege for the solvent few whose interest is generally limited to self-interest.
Access to justice is the lifeblood of democracy; to drain it with punitive costs is to suffocate it and rob it of its vibrancy, and of the expansion of opportunities and further development of society. Both of which are badly needed in Guyana.