The Airport Gate The Acting Appointment The Algorithm

Professor Justice Courtney Abel

Professor of Law (Legal Practice), University of Guyana; retired Justice of the Supreme Court of Belize; Overseas Master of the Bench of the Inner Temple

Delivered as a panel presentation in Session 9, Current Tensions Between Judicial Independence and the Rule of Law, at the Annual Conference of the Commonwealth Magistrates’ and Judges’ Association, Kingston, Jamaica, on Wednesday 23 September 2026. Conference theme: Sustainable Justice: For Today, For Tomorrow, For All.

 Abstract 

This paper examines contemporary pressures upon judicial independence from the perspective of small postcolonial Caribbean states. Taking as its point of departure the reported travel restriction affecting Justice Gino Persaud of Guyana, it considers how foreign executive power, domestic political criticism and institutional uncertainty may influence the conditions within which judges work, even where no direct command or threat is made. The paper then examines Guyana’s prolonged reliance upon acting appointments to the offices of Chancellor and Chief Justice, the constitutional demand for political agreement, and the limits of the Caribbean Court of Justice in resolving institutional stalemate. It argues that modern threats to judicial independence may operate through atmosphere, insecurity, anticipation and digital amplification. Against this background, freedom is developed as judicial and collective authorship: the judgment must remain the judge’s own, bounded by law, evidence, precedent, principle and reason. Artificial intelligence may assist judgment, but must never become its hidden author. 

Keywords: judicial independence; rule of law; Caribbean constitutionalism; Guyana; acting judicial appointments; Caribbean Court of Justice; artificial intelligence; freedom as authorship 

An unwritten judgment hangs suspended. No outside command. No visible threat. Yet a shadow looms: external power insinuates itself, never even touching the pen. When the judgment is complete and the final story told, who is the author – and who merely the scribe?

Chair, distinguished colleagues, ladies and gentlemen:

I will speak about current tensions between judicial independence and the rule of law from the perspective of the Caribbean.

Conceptually, there should be no tension. Judicial independence is not opposed to the rule of law. It is one of its indispensable conditions. Without independent judges, law may become merely the language through which power speaks.

The tension lies elsewhere: between constitutional principle and the realities of power.

A Caribbean condition

The Caribbean is more than a geographical location. It is a constitutional condition: small states, inherited institutions, intimate political societies and powerful neighbours.

Judicial independence is written into our constitutions. Vulnerability is written into our history – and often into our circumstances.

The matter I will address is sensitive and still developing. I have therefore prepared my remarks in writing. Where facts remain uncertain, restraint is not weakness. It is discipline.

The airport gate

Even as we travelled to Jamaica – particularly those of us travelling from Guyana – an episode unfolded that might almost have been designed as a demonstration of the tension we have assembled to discuss.

I had prepared one presentation. Circumstances required another.

On Saturday, 19 September 2026, Justice Gino Persaud, a serving judge of the High Court of Guyana and a member of this Association, was due to travel to this Conference. His journey was routed through Miami. At the airport, airline personnel reportedly told him that his name had been flagged, that his United States visa was under review, and that he could not board the flight.

The restriction mattered. Without passage through Miami, he could not make the journey as booked.

The United States has not publicly called the measure a sanction. Yet an unexplained restriction imposed by a foreign power upon a serving judge, preventing him from travelling, operates as a sanction in practical effect.

A sanction need not announce its name. Why has this caused concern?

Justice Persaud has decided politically sensitive cases. They included revenue proceedings concerning members of the Mohamed family and the taxation of imported luxury vehicles. One member of that family was subsequently elected to Parliament and became Leader of the Opposition. Justice Persaud’s rulings were adverse to the State and the Guyana Revenue Authority. Senior governmental figures, including the President, publicly criticised aspects of those decisions. The ordinary constitutional response remained available: appeal.

The context is more charged still. Members of the Mohamed family have been sanctioned by the United States and are the subjects of American extradition proceedings. The action affecting the judge therefore lies at the meeting point of domestic politics, judicial decision-making and American executive power.

It has been publicly alleged that persons within the Guyana Government may have encouraged, or supplied information leading to, the American action. That allegation is unproved. The United States has given no public reason. The Guyana Government has acknowledged no such role.

There is chronology. There is context.

There is concern.

There is not yet proof.

Suspicion is not evidence. But neither is silence an answer.

When an unexplained exercise of foreign executive power materially affects a serving judge after politically sensitive decisions, at what point does a private immigration matter become a public question of judicial independence?

The question is larger than Justice Persaud. It concerns the judge who comes next. What message does the unexplained closing of one gate send to every judge who must later approach another?

Power and atmosphere

I speak not only as a constitutional lawyer, but from lived experience. I too have served as a foreign judge in a small jurisdiction. I learned that pressure seldom arrives wearing a name badge.

Power does not always command.

More often, it arranges the atmosphere.

It may prolong an acting appointment until expectation and insecurity merge. It may criticise a judgment without confronting its reasons. It may unsettle relationships with staff. It may alter security arrangements, leaving the judge to wonder who protects, who observes and who reports.

No direction is given. No threat is recorded. The judge remains in office. The salary is paid. The courtroom opens.

The appearance of independence survives. But does its substance?

A judge may remain legally independent and become humanly exposed. Judicial independence should not depend upon judicial heroism. The law should not require every good judge to become a constitutional martyr.

The airport gate reveals another vulnerability. A judge in a small postcolonial state lives within an unequal international order. The state may face sanctions, diplomatic pressure or economic consequences. The judge may have to travel through a larger state and submit to immigration decisions for which no explanation need be given.

Each encounter may be lawful. Each question may be routine. Judges do not acquire diplomatic immunity by purchasing an airline ticket.

But context matters. Timing matters.

Silence matters.

A constitution may protect a judge from the executive at home. Who protects the judge from the collateral power of an executive abroad?

Permanent temporariness

That brings me to the senior judiciary of Guyana.

The Chancellor is head of the Judiciary and President of the Court of Appeal. The Chief Justice leads the High Court. Article 127 of the Constitution requires the President to obtain the agreement of the Leader of the Opposition before either office may be filled substantively.

The aspiration is noble. The highest judicial offices should command confidence across the political divide. The design, however, demands consensus without providing an effective means of overcoming its absence.

The result has been an impasse lasting more than twenty years. Governments have changed. Opposition leaders have changed. Acting arrangements at the summit of the Judiciary have endured.

An acting appointment may be lawful. It may be necessary. But permanent temporariness is a contradiction with constitutional consequences.

Can the head of a judiciary be wholly secure while political actors retain the power to decide whether the office will ever become substantive? At what point does a constitutional bridge become a constitutional waiting room?

The CCJ and the problem of consensus

The Caribbean Court of Justice is Guyana’s final appellate court. Successive Presidents of the Court have repeatedly – and creatively – urged Guyana’s political leaders to secure substantive appointments to the offices of Chancellor and Chief Justice. All to no avail.

The Court may interpret the Constitution, correct legal error and expose institutional failure. But it cannot itself make the appointments. It cannot compel political agreement. It cannot manufacture constitutional maturity.

Nor are courts themselves immune from the difficulty of achieving consensus. That shared vulnerability points towards a wider Caribbean lesson. We must move beyond inherited adversarial habits in which disagreement becomes deadlock and compromise appears to be surrender.

We must author more conciliatory methods: indigenous, relational and truly Caribbean. Methods that place us in a circle, rather than permanently opposite one another as combatants. Methods that preserve principle while making agreement possible.

A court may show us the road. It cannot make us walk upon it. But it may remind us that constitutional progress begins when adversaries learn to become authors together.

Freedom as judicial authorship

The airport gate and the acting appointment are different events. Yet they reveal the same anxiety: a judge’s formal authority may remain intact while the conditions surrounding judgment are shaped by powers the judge does not control.

Can lawful powers, accumulated and strategically exercised, create a culture hostile to judicial independence? Can the rule of law be weakened through powers conferred by law?

The old assault was visible. The judge was removed. The court was closed. The judgment was ignored.

The modern assault may leave no fingerprints. It may never tell the judge what to decide. It may merely teach the judge what decisions are costly.

We therefore need to understand judicial independence in its modern form. I approach it through the postcolonial Caribbean idea of freedom as self-authorship and collective authorship.

This freedom arises from our struggle against colonial rule. It is the capacity to become the responsible authors of our lives, rather than characters in a script written by others. Collective freedom is the capacity of a people to author the institutions, laws and purposes of their common life.

That hard-won inheritance requires the judge to remain the true author of the judgment. Not the Government.

Not the Opposition.

Not the press.

Not a foreign power.

And not an algorithm.

Judicial authorship is not personal licence. It is bounded by law, evidence, precedent, principle and reason. But within those boundaries, the judgment must belong to the judge.

Once fear writes even one sentence, independence has already been diminished.

The algorithm

And now artificial intelligence enters the story.

Generative AI can research, summarise, translate and draft. It can widen access to justice. It can also fabricate authorities, imitate voices, manufacture images and tear fragments of judgments from their reasoning.

A political whisper may become a digital chorus before the judge returns to court the following morning.

Power once whispered through corridors.

It can now whisper through a million screens.

There is a further danger. If a judge surrenders reasoning to a machine, external power need not seize the pen. The judge may voluntarily hand it over.

AI may assist judgment.

It must never become its hidden author.

Keeping justice out of the shadows

I offer no complete programme today. A fifteen-minute presentation should not attempt to solve the constitutional problems of the Commonwealth. That would require at least twenty – and considerably stronger coffee.

But the questions must be asked.

The action affecting Justice Persaud may prove routine, mistaken, justified or unrelated to his judicial work. If so, appropriate process should disclose that. Until then, its constitutional significance lies not only in what may have happened, but in the message an unexplained action may send.

Judicial independence is no longer threatened only by dismissal, imprisonment or an envelope pushed beneath a chamber door.

The modern threat may be lawful in form, temporary in appearance, administrative in language, foreign in origin, digital in transmission and psychological in effect.

Its subtlety does not make it unreal.

It makes vigilance more difficult – and more necessary.

Perhaps those who chose this Conference topic possessed a little Caribbean obeah. While we travelled here to discuss sustainable justice, a serving judge encountered, at an airport gate, the very tension we assembled to examine.

The airport gate.

The acting appointment.

The appellate court.

The algorithm.

Four sites of power.

One question of authorship.

Judicial independence preserves the judge’s freedom to author the judgment. The rule of law preserves our collective freedom to author the constitutional order.

Neither freedom is self-sustaining. Both require vigilance. Both require courage. In this increasingly complex world, both require imagination.

Where reasons end, shadows begin.

Our task, as judges, citizens and members of the Commonwealth, is to keep justice out of the shadows.

For when the judgment is complete and the final story told, the judge must remain its author – and never merely its scribe.