In March of last year acting Chancellor of the Judiciary Yonette Cummings-Edwards had lamented the shortage of judges in the light of the increasing case-load being placed on them. Last week at the opening of the Law Year 2023 there she was again appealing not just for more judges, but also for the constitution of the Judicial Service Commission whose life expired in 2017. Neither the Granger administration nor the current one appeared to regard its establishment as a matter of priority, and so the system has limped along without it ever since with seriously over-burdened judges. In November of the year before last President Irfaan Ali had committed to ensuring that appointments would be made to the Commission, as well as to the appointment of a substantive Chancellor and Chief Justice, but either he changed his mind or he never intended to follow through with the commitment in the first place.
“We do not need the rhetoric … We need the judges,” said the Chancellor. Unfortunately, rhetoric as a substitute for action is all too common in this country. The Judicial Service Commission is critical to the appointment of new judges and magistrates, since it advises the President on judicial appointments other than those of the Chancellor and Chief Justice. In addition one of the members of the Commission is the Chairman of the Public Service Commission, and the PSC has not been set up either.
In Article 198 the Constitution requires that the Chairman of the JSC should be the Chancellor, while the other members are the Chief Justice, the Chairman of the Public Service Commission and members appointed by the President. One of the latter must have held office as a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or an appeal court in such jurisdiction. This appointment is to be made after meaningful consultation with the Leader of the Opposition. There should also be not less than one and not more than two from among persons who are not attorneys-at-law in active practice after the National Assembly has meaningfully consulted such bodies as appear to it to represent attorneys-at-law in Guyana. Where this provision is concerned, the year before last we reported that Parliament’s Committee of Appointments had nominated retired Justice Beasraj Singh Roy to sit as a member of the JSC, although that has little significance in circumstances where the Commission itself has not yet been constituted.
The political cognoscenti will have recognised that what has impeded the appointment of the Judicial Service Commission is the same thing that has impeded the appointment of a substantive Chancellor and Chief Justice, i.e. meaningful consultation with the Leader of the Opposition, in this case for a single member of the Commission.
Attorney General Anil Nandlall was all too sympathetic about the plight of the judges, and assured the judiciary and everyone else present that he was “painfully aware of this deficiency”, and wanted to congratulate the complement of judges who had not been intimidated by it. Significantly he went on to say, “I want to assure that very, very early this year, long before the end of the first quarter of this year, we would have appointed the Judicial Service Commission and the Public Service Commission; two important constitutional commissions that will address the inadequacies of human resources that currently plague the juridical institution.”
If that sounded hopeful, it has to be remembered that in August of 2021, Mr Nandlall had breezily remarked that President Ali was in the process of conducting the requisite consultations to have the appointments to the JSC made by the end of the month. At best, that turned out to be a case of unmitigated optimism, although in fairness he probably has little control over what the head of government decides to do. At a time when the President was refusing to meet then Opposition Leader Joseph Harmon, he had said that the two would have to “fashion a way” forward, but that as Attorney General he could only urge constitutional compliance.
What is in his favour as trying to relieve the situation is the fact that in November he tabled a bill in the National Assembly to increase the number of judges sitting in the Court of Appeal to at least nine. Currently the law provides for not less than two and not more than five judges for that court. Those additional appointments still cannot be made, however, if there is no Judicial Service Commission in place. In addition, last Tuesday the AG said that tomorrow’s Budget would reflect an allocation to the judiciary of “several billion dollars” which he went on to add would “bring into fruition the plans that the judiciary would have independently constructed and put to the Ministry of Finance.”
Acting Chief Justice Roxane George, who in concert with Director of Public Prosecutions Shalimar Ali Hack and President of the Bar Association Pauline Chase echoed the Chancellor’s concerns, also expressed appreciation for the government’s provision of infrastructure and financing. However, she said, while buildings were a necessary part of the improvements, “Buildings do not serve people or provide justice. People do.”
Elaborating on the “extremely high” case load of judges she said that on average a civil judge would oversee a constant docket of 200 to 400 court cases at any one time for all three counties.
Criminal judges, she further related, were also assigned some civil matters to assist with the case load, while the two Commissioners of Title “carry a case load of thousands for all three counties.” Owing to the staff shortage written judgments, she said, could no longer be maintained in some cases, which would have to have oral judgments.
For her part DPP Ali-Hack said that there were 308 cases to be heard by only three judges in the Demerara Assizes, and one of these would be sitting in the Sexual Offences Court where 134 cases were listed. The remaining 174 included 61 for the offence of murder and 24 for manslaughter.
Looking at these figures one does not have to be a legal luminary to recognise that the system at a human level is not sustainable on this basis, which was the point GBA President Pauline Chase made. The lack of adequate judicial staffing severely undermined the administration of justice, she observed, saying, “We at the Bar are acutely aware of the pressure that this is placing on the system.” The small complement of judges could be compared to Atlas holding up the globe, was the simile she employed.
One would not have thought that a government which promotes itself as modern and is taking the country on a new development path would need to be persuaded that an efficient judicial system is critical to its plans. Foreign investors will not come if they have no confidence in the legal system, never mind the fact that the local population is entitled to timely justice in the criminal sphere, while civil litigants should not have to wait years to secure a judgement. The Chancellor also made reference to all the new legislation government wanted to pass, some of which might end up in the courts for interpretation. If the people are not there to undertake all this work, how is this brand new society the government is dreaming about going to function? Obduracy on the part of the administration because of political motives will damage its own reputation, and not just that of the nation.
Last October the AG said, “[O]ur government considers the administration of justice as central to our country and an important factor in the democratic, economic and social equation of our country.” Whether or not that is proven to be true will depend on whether the President is prepared to meet the Opposition Leader on the JSC appointment first, and if the latter is prepared to discuss the matter rationally and avoid confrontation. Both might need to compromise, which is not an aptitude either of them can claim. After that there will be the trickier matter of the Chancellor and Chief Justice appointments to address in a situation where the head of state by his procrastination has indicated he doesn’t want one or both of them. Whatever the case, he still has to call in Mr Norton for a discussion.
The public waits to see how serious the head of state really is about creating a viable judicial system, and whether political obsessions on the part of the ruling party continue to override rationality and what is needed for good of the nation.
