Fate could hardly have been crueler. This week marks the first occasion that the Caribbean Court of Justice (CCJ) is meeting in Guyana as an itinerant court. It should have been a moment of pride for our judiciary and a tribute to our own Justice Madame Desiree Bernard, CCH, OR on whose long legal career, including a place on the CCJ, the curtain will soon close. Instead, the cocktails and lunches being arranged for our distinguished visiting legal luminaries will not erase the embarrassment of the most recently appointed member of our appellate court Justice Rabi Sukul being disbarred from practising in the UK by the Bar Council of England and Wales for intentionally misleading his client by drafting false grounds of appeal.
At every hopeful point at which the pessimists think the country has exhausted its sack of scandals, another one surfaces, exposing the immoral underbelly of a soulless country: one of failed, or dysfunctional, or non-functional national institutions. A separate piece can be written about every one of those institutions and even more about the individuals responsible for their moribund state. But we – and I mean mainly the business class and the professionals – are too comfortable, compromised or cowardly to challenge the illegalities and improprieties that are perpetrated daily by public offices in Guyana.
What is frightening is that a colleague who practises daily in the courts told me that the sin of drafting false grounds of appeal that led to the disbarment of former Justice Sukul is committed regularly in the Guyana courts, even by seasoned lawyers. Those civilized rules seem alien to Guyana where an attorney convicted and jailed in Canada practises in the courts in Berbice despite the information about his conviction having been brought to the attention of and acknowledged by the Attorney General.
Questions and more questions
There are several serious questions to be asked and answered about Justice Sukul’s Court of Appeal appointment but some background information first. The Constitution provides for the President to appoint judges, other than the Chancellor and the Chief Justice, on the advice of the Judicial Service Commission (JSC). It provides for the JSC to comprise not less than five and not more than six persons made up of three ex officio members – the Chancellor as Chairman, the Chief Justice and the Chairman of the Public Service Commission – and not less than two or more than three persons appointed by the President. Of the appointed members, one must either hold or had held the position of a judge and is appointed after consultation with the Leader of the Opposition, while the other one or two must be non-practising attorneys-at-law chosen by the National Assembly after consultation with legal professional bodies.
The first question is that the National Assembly, the Speaker of which has always been an attorney-at-law, seems never to have been aware of its duty to consult and make recommendations to the President. This reflects poorly not only on Mr. Raphael Trotman, the Speaker of the National Assembly but also on Chancellor (ag.) Honourable Carl Singh, CCH as the JSC’s chairman.
Related to the issue of the failure of the National Assembly is that there was no appointment arising from consultation with the Leader of the Opposition with the consequence that the JSC does not appear to have a single appointed member. That means that the JSC as currently constituted comprises only the ex officio legal officers and Mr. Carvil Duncan, a PPP appointee to chair that other dysfunctional body called the Public Service Commission.
Following from this is whether the JSC could and should have acted without its appointed members, including making such an important decision as appointing a fourth judge of the Court of Appeal. But even if we assume it could, the question arises as to the criteria, rather than just the qualifications, for appointment of such a judge. Another is the actual process for advertising, receiving, collating applications, shortlisting and arranging for proper interviews and independent background checks, particularly of applications from abroad and of any recommendations or testimonials submitted, etc.
As an aside, the track record of the Judicial Service Commission is not free of controversy or suspicion. On his Facebook page, one attorney accused the JSC of ignoring an application for the post of Director of Public Prosecutions from Arif Bulkan of impeccable academic pedigree and virtually selecting the incumbent. As far as I am aware, that accusation has never been challenged.
Then there is the interview itself and the importance of sanitizing the process to avoid any real or perceived conflicts of interest. Suppose for example that one of the applicants is a friend of one of the two judicial persons carrying out the interviews. In that case, the person would clearly have to recuse himself from the process leaving only Mr. Duncan and the other judicial person, a highly undesirable state of affairs since the decision will effectively be made by one person.
To top it all, there must be transparency and some public information about the entire process the output of which influences and determines an important arm of the state which wields immense power and influence on what we own and how we conduct ourselves. No information was provided in the case of Justice Sukul.
Spin it however we might, this is a huge embarrassment to the country, the Government, the Chancellor, what exists of the Judicial Service Commission, the Attorney General and the legal profession. According to a statement from the Office of the Chancellor, he learnt of the disbarment eleven days after the decision by the London Tribunal and nine days after it appeared in the London Law Gazette.
The statement from the Chancellor’s Office did not offer any reason for his action in seeking Justice Sukul’s resignation rather than moving to have him removed in accordance with the procedures set out in the Constitution. If the Chancellor’s call for the resignation and Justice Sukul’s compliance were seen to be the end of the matter, they would invite all kinds of speculation by a justifiably skeptical public.
For the public to be satisfied, the action by the Chancellor leaves no option but for the President who appoints and removes judges to set up an Inquiry into all the circumstances surrounding the appointment of Justice Sukul. Such an Inquiry will necessarily exclude the three ex officio members of the Commission and must have the power to subpoena records and persons. We have to make sure that the architecture that permitted this travesty to occur is dismantled.
Fixing the Judiciary
The Sukul Saga has exposed some serious flaws in the constitutional arrangements governing the Judicial Service Commission and its methods of operation. Guyana needs a more effective judiciary than one the Constitutional Division of which is limited to a single judge and of which the top two persons have been singled out by the politicians for tax free salaries. That is antithetical to the rule of law which requires all to be treated equally.
The public expects improvements to a judiciary that often appears dysfunctional and that brings the country into such untimely disrepute (not that there is such a thing as timely disrepute!). The constitutional arrangements governing the composition and conduct of the Judicial Service Commission needs fixing with provision for an independent Chairman and that are less tolerant of serial vacancies.
But we must not fool ourselves: our legal problem neither begins nor ends with the judiciary. The Guyana Bar Association, of which I am the Secretary, has been largely silent while the judiciary and the Justice Improvement Project on which billions have been spent seem to move in opposite direction. As the Bar Association considers its response to the Sukul issue, it must also address the improper conduct of legal practitioners, including their employment of touts. It has to justify the privileged place society accords the legal profession and to recognise that its objects extend well beyond representing lawyers’ interests.
It is regrettable that what was planned as a celebration to Justice Bernard has drawn heightened focus on a dark day for Guyana’s judiciary and the country. Still, I wish her a long and happy retirement.
I am an attorney-at-law admitted to practise in the Guyana Courts.