Cabinet’s draft bill, which is seeking to enforce time limits on judicial decisions and remove judges from office if they fail to comply is quietly being met with resistance from the legal fraternity, and according to reports, an outright rejection of it seems imminent.
The intention of the bill is well placed and timely, a legal source said, adding that “it is not the ‘what’ but the ‘how’ which is the source of the resistance.”
In April, after the bill was passed to the Guyana Bar Association (GBA) from the Office of the President, comments were being sought on the proposed legislation; the legal community has been slow in responding.
But the draft bill had remained relatively low key since the Joint Legislative Drafting Committee of Cabinet sent it earlier this year to the GBA, and was only raised publicly earlier this month when Head of the Presidential Secretariat, Dr Roger Luncheon accused the bar association of dragging its foot on it.
The bill is seeking to satisfy the constitutional requirement of specifying a time limit for a judge’s decision and reasons for the decision. It cites Article 197 (3) of the Constitution, which states that a judge can be removed from office, “for persistently not writing decisions or for failing to give decisions and reasons therefore within such time as may be specified by parliament.”
Judicial decisions have long been the subject of public criticism with some taking an average of four years to be handed down in many civil matters.
Clause 3 and 4 of the bill provides for a decision to be given as soon as possible after the end of the trial but not later than 120 days from the completion date of the trial of both civil and criminal matters.
But there are certain instances where, on application by a judge, the Judicial Service Commission (JSC) may grant an extension. Clause 5 of the bill states that a judge can apply to the JSC within a period of 21 days before the expiration of the prescribed time limit. Judges are expected to provide reasons and supporting evidence of the need for the extension with the duration of extension requested.
Clause 5 (4) of the bill says that the commission may grant a stated extension of time in instances where, the case is shown to be a complex one; the judge’s claims of illness is supported by a medical certificate; the judge can support the claim of official additional assignment, or any other claim, which is accepted as reasonable.
But the commission has the discretion to grant any specified extension and if it so refuses, a judge has only ten days to give a decision, according to Clause 5 (5) of the bill.
The bill also addresses the removal from office of judges who fail to comply with the specified time limits. Clause 6 seeks to notify a judge that on each occasion he/she fails to comply with the time limit without an extension being granted, he/she could be removed from office in keeping with Article 197 of the Constitution.
The bill also makes provision for the National Assembly to be made aware of a judge’s non-compliance with his/her constitutional duty to write or give decisions in a timely manner. The Secretary of the JSC does this by way of an annual report, through the Attorney General and Minister of Legal Affairs. The report lists each case of non-compliance with the prescribed time limit, each case where extension of time was granted or refused by the commission and each notice given by the commission. It also includes any case in which the procedure under Article 197 of the Constitution was utilized for the removal of a judge for failure to write decisions or failure to give decisions and reasons, within the contemplation of Clause 6, which addresses the removal of judges.
The draft judiciary bill comes in the wake of a fiery exchange of words between the legal community and the administration which culminated with the GBA saying it will continue to speak out when criticism moves beyond the boundaries of ‘fair’ and appears to be an attempt to impact on the perception of judicial independence.
It was in direct reference to an OP statement which stated that public criticism follows the actions, decisions, careers of public officers, including judicial officers worldwide and that the judiciary should not expect to be exempt.
The OP statement was in response to the GBA which had expressed alarm at comments from President Bharrat Jagdeo and Home Affairs Minister Clement Rohee about the judiciary, some of which it said could be interpreted as threatening.
According to the OP, the GBA was attempting to create a nexus between Jagdeo’s comments at the police officers conference in April and Rohee’s, which were made last month and published in the Kaieteur News, and which OP had disassociated itself from, when there was none. It said the GBA’s suggestion that a criticism of the judiciary was essentially to be viewed as a threat was ludicrous.
