The ceremonial opening of the April assizes was held the week before last after a two-year hiatus caused by the pandemic. In the course of her address to the gathering acting Chief Justice Roxane George drew attention to the fact that despite the challenges of the Covid-19 experience, some positive developments had emerged. In particular, there was the modernization of the courts which were now utilising technology to support their operations.
Among other things, there had been a reassessment of case management, and a website for the Supreme Court had been created along with an e-filing mechanism and a Facebook page.
A suite of recording systems had been introduced, along with video conferencing facilities and the container courts. All these developments, said the acting Chief Justice, allowed for the expeditious transition to virtual court hearings and the resumption of jury trials. There will be technologically advanced new courts too, while older courts will benefit from more advanced facilities as will the High Court.
She also adverted to the role of the Guyana Bar Association in working to establish a digital case-management system for the Magistrate’s Courts in relation to the filing and hearing of matters. She went on to say that going forward, it will be discussed how the courts could best utilize virtual hearings, as “without a doubt they are here to stay.” Tribute was also paid to the partners from whom the court had benefited, from the Governments of Guyana, the United States, Britain and Canada, to the Jurist Project, Unicef and the National Centre for State Courts.
That Guyana, which is notorious for the unconscionable lengths of time it often takes for cases to be heard had improved somewhat was apparent even to President of the Caribbean Court of Justice, Justice Adrian Saunders. Speaking to the legal fraternity at a dinner hosted by the Guyana Bar Association, he said that in the early days following the inauguration of the CCJ, cases from this country had usually been in the system “for many years”. The rules of court dating back to the 19th and early 20th centuries were not conducive to modern case-flow management, and the judicial system here “had not kept abreast of all the reform initiatives that had swept through much of the region in the ´90s and early part of this century.”
However, he went on to say, two decades later Guyana’s justice system was now “dynamic, responsive and innovative,” and he described acting Chancellor Yonette-Edwards and acting Chief Justice George as “two forward looking and progressive judges.” The time it took for cases to reach the CCJ was now much shorter than had been the case before, said the CCJ President, and that as far as he could tell, judgments in the local courts were being given “in a far more timely fashion.”
But the use of technology is only one element in relation to timeliness where the courts are concerned. In the first instance there have to be enough judges – and magistrates − on the bench to cope with the number of cases which need to be heard, and where that is concerned, Guyana falls seriously short. The President of the CCJ also made reference to this deficiency, observing that, “the Executive needs to provide the judiciary with its reasonable needs. So, for example, three judges of the Court of Appeal is simply not enough for that court to perform effectively.”
It might be noted that he is far from being the only one or the first to have alighted on this shortfall. At an earlier stage, acting Chancellor Cummings, among others, had said that the total of 13 judges to preside in the three High Courts across the three counties, was inadequate. Judges as well as magistrates are appointed by the President acting on the advice of the Judicial Service Commission, but there has been no Commission in place since 2017, so there have been no new appointments since that time. But this brings us into an entirely different dimension quite outside the parameters of technical advances: in other words, politics.
According to the Constitution the Judicial Service Commission includes one presidential appointee who is selected after “meaningful consultation” with the Leader of the Opposition. There has been no Leader of the Opposition since January this year, when the incumbent, Mr Joseph Harmon, resigned, but President Irfaan Ali and his government have been in office since August 2020, and Mr Harmon was elected by the combined opposition shortly thereafter. The President refused to meet his opposition counterpart unless APNU+AFC recognised his government as legitimate, a prerequisite which is nowhere to be found in the Constitution.
The President’s unconstitutional behaviour extended beyond the Judicial Service Commission to the matter of appointing a Chancellor and Chief Justice, which also require the input of the Leader of the Opposition. To the discredit of all our politicians there have been no substantive appointments to these top posts for seventeen years; the present incumbents like their predecessors are there in an acting capacity. This matter has had considerable exposure, including from Sir Dennis Byron, the then President of the CCJ in 2017 who said at that time that prolonged acting appointments represented a real “risk” to the promise of an independent and impartial judiciary. For his part Justice Saunders called it a “significant blot on an otherwise impressive … legal and judicial landscape.”
The Guyana Bar Association has also raised its voice in this regard. At the opening of the Assizes President Pauline Chase was reported as saying that the non-confirming of the two top judicial posts and the absence of a JSC were all inimical to the rule of law. The problem is that none of our governments have been that concerned about the rule of law except as a slogan, and neither have they been that enamoured of an independent and impartial judiciary. In a general sense what they have always wanted was a complement of judges, if not magistrates as well, which favoured their own party, and acting appointments, they consider, give them more control.
This year President Ali has finally said he will discharge his constitutional duty, and now, after seemingly endless internal wrangles, the coalition has elected Mr Aubrey Norton as Leader of the Opposition, so the head of state has no further excuses not to meet him. It remains to be seen with how much alacrity he will do so. It is further not clear whether these representatives of two such implacable adversaries can actually put country ahead of party.
In his column in this newspaper of April 10, Mr Ralph Ramkarran related how it was that we ended up with such an unworkable method for choosing candidates for these two critical judicial posts. The Constitutional Reform Commission had favoured a consensual mechanism, but owing to time constraints the formula was left to the political parties to negotiate, with the result now familiar to us all. Exactly what that consensual mechanism would have involved, he did not say, so we shall never know whether in fact our political operatives would have managed to pervert that too.
We reported Justice Saunders as emphasising the importance of ensuring that the system of judicial appointments and promotions was competitive, transparent and based on merit. By and large, none of our political leaders has had much of an eye for merit, and in any case, an independent-minded judiciary makes them nervous, especially given its role as a potential arbiter in political cases. “Now more than ever, Guyana’s judiciary must be and be seen to be impartial, independent, competent, efficient and effective,” the CCJ President was quoted as saying. The politicians would agree with that statement in theory, but the public is justified in treating any such assertions emanating from them with scepticism; so far their actions have not lived up to their words.
