Dear Editor,
I am taking this opportunity afforded by the columns of your newspaper to comment on The Time Limit for Judicial Decisions Act 2009 enacted recently by the Parliament of Guyana.
The legislation was passed unanimously in the National Assembly prescribing a time limit for the delivery of judicial decisions. The unanimous approval of the legislation by the Assembly (inclusive of members of the legal profession) obviously, in my opinion, indicates some disenchantment with the legal processes in Guyana.
I have adopted this course of action believing that it would be of interest to your readers. With respect to the Time Limit for Judicial Decisions Act 2009, I must acknowledge the commentaries on the legislation by His Honour Chancellor (ag) Justice Carl Singh, in his feature address delivered on the occasion of the launching of Dr Claude Denbow’s recent publication on the law relating to insurance in the Caribbean Community and also the contribution of Mr Anil Nandlall, Attorney-at-Law and Member of the National Assembly, during the consideration and passage of the Bill in the Assembly as reported in the Guyana Chronicle of June 8, 2010. In his address, Chancellor (ag) Justice Carl Singh expressed his reservations, and presumably, those of the other judges, concerning the effect of the legislation, particularly the conflict, in his opinion, created among provisions of the constitution.
The legislation providing time limits for the delivery of judicial decisions is enacted in pursuance of Article 197 of the Constitution of Guyana amended in the constitutional review process in the post 1992 era. The article now provides for disciplinary action to be taken in the event that a judge’s decisions are persistently delayed. Surprisingly, the legislation requires an annual report to be laid in the National Assembly.
The intent of this provision ought to be of some concern to the legal profession and, in particular the judiciary, having due regard to the doctrine of the separation of powers reflected in Guyana’s Constitution referred to by the Chancellor in his address and the fact that the Constitution of Guyana reflects constitutional sup-remacy and not parliamentary supremacy (as for example, in the United Kingdom) for the reason that constitutions of Commonwealth countries, like ours in Guyana expressly declare the constitution to be the supreme law of the state and confer on the superior courts the power to declare unconstitutional (or to strike down) a law enacted by the Parliament.
The question may even be asked – what is the purpose of an annual report being presented to the National Assembly? Is this requirement a measure intended to make the judiciary accountable to the legislative body?
I am not aware of a precedent for this type of constitutional or statutory provision in other member states of the Caribbean Community, although there have been judicial pronouncements on this matter supporting a time limit for the delivery of judgments as mentioned by Mr Nandlall in his presentation in the National Assembly. Also, I can find no similar provisions in the constitutions of other Commonwealth countries, except Nigeria, which on the basis of my research, may have provided the inspiration for the legislation enacted in Guyana.
The constitutional provision of Nigeria has, however, been the subject of a critical review in the Commonwealth Law Bulletin (Vol 27 No 22001 1278 – 1290). I am of the opinion that the courts are likely to construe the recently enacted legislation as being directory in its nature and not mandatory and, consequently, the court’s decision can be delivered despite the statutory time limit. Otherwise, the successful party or parties to the litigation will be prejudiced.
In my opinion, the alternative available is to apply appropriate disciplinary procedures whereby the Judicial Service Commission can deal effectively with these matters. Article 197 of the Guyana Constitution, amended in the constitutional review process, now provides for a judicial inquiry to be conducted in circumstances where a judge’s decisions are delayed persistently.
In my opinion, even this approach, in the context of Guyana, has its limitations as evidenced from past experience where remedial disciplinary action with respect to judicial performance requires the institution of a judicial enquiry (not in camera) as mandated by the constitution with the judicial officer having the right to be represented by counsel of his or her choice.
The experience in Guyana has shown that the conduct of a public enquiry into judicial conduct or performance is not likely to be expeditious, ultimately reflecting un-favourably on the reputation of the particular judge and the image of the judiciary generally, particularly in a small society like ours.
Also, the sanctions to be imposed on the basis of the findings of a public enquiry into the performance of a judge are, in my opinion, limited to dismissal from office or suspension for a period.
Other sanctions, eg, loss or reduction of emoluments, if imposed, are likely to be challenged as being unconstitutional because of the constitutional guarantees enjoyed by the judiciary with respect to their emoluments and other conditions of service.
However, certain allowances paid to the judge, because of their very nature, may not be payable during a period of suspension from office, eg, the monthly tax free duty and entertainment allowances.
A determination must be made by the appropriate authority of other benefits which may properly be received by a judge who has been suspended from performing the functions of his or her office.
However, in either of those situations (dismissal or suspension from office) likely successful litigants engaged in litigation over which the particular judge is adjudicating are likely to be prejudiced.
The institution of disciplinary proceedings in Guyana against a judge for failure or delay in delivering decisions must, therefore, in my pinion, be considered carefully.
The experience in other jurisdictions in the Commonwealth should provide very useful information on this matter concerning the judiciary.
Yours faithfully,
Brynmor TI Pollard, SC
