Sad state of the judiciary

Today I want to turn the spotlight on the country’s judiciary but before I do so I will briefly recap on four exchanges in the newspapers between the Office of the Attorney General and the Ministry of Legal Affairs through its Permanent Secretary, Ms. Indira Anandjit, and me.

In her second letter published on October 10 Ms. Anandjit outdoes her first on October 8 in terms of abuse, distortions and outright untruthful statements. But there was a twist. She resorted to accusing me of chauvinism, claiming, dishonestly, that I “insinuated” that she did not write the first letter of which she is yet to assert ownership. What I said is that “Mr Nandlall would shelter under the coattails of his Permanent Secretary from which to throw pebbles at me.”

Ms. Anandjit’s call for help in the name of chauvinism is equally dishonest. In my letter in the Stabroek News of October 7, critical of Anil Nandlall’s inaction on the Judicial Review Act, I did not mention her name or refer to her even once. Yet, responding in defence of Nandlall, she used the opportunity on October 8 to attack me by name eleven times. In my second letter on October 9, I mentioned her name peripherally two times. In her response on October 10, she continued her personal attack, referring to me by name eight times. Now, nineteen times against two hardly supports any genuine cri de Coeur of misogynistic victimhood.

Mischievous distortions
Now let me deal with her distortions and misrepresentations before going on to deal with what has now surfaced and that is the predicament in which the Rules Committee of the High Court has placed Guyana.

1. That I said or implied that Nandlall is responsible for bringing the Rules of the High Court into operation. Fact: What I said was “Mr Nandlall as Minister of Legal Affairs has executive responsibility for the administration of justice and it is in him and him alone that the power and duty vest to bring the Judicial Review Act into operation.”

2. That I need to acquaint myself with the elementary matter that responsibility for the Rules does not reside with the Attorney General and Minister of Legal Affairs. Fact: Ms. Anandjit appeared not to have noticed my call to the “justice administration to lift from the new rules the relevant Part 47 comprising three pages of twelve paragraphs and publish that part separately”, or did she not recognise the distinction?

In fairness to the lady the headline was misleading but she must be assumed to know that a letter writer does not choose the caption of the letter although if she had read the letter carefully she would realise that the caption of the letter did not reflect the text.

3. That the Rules of Court are in draft. Fact: New Rules of Court were completed and tabled in the National Assembly on November 18, 2010. The Rules are subject to negative resolution which means that within 21 days of their laying over, a member of the National Assembly can bring a motion to amend or reject the Rules. This was not done and by operation of the Standing Orders of the National Assembly the Rules became law forty days after they were tabled.

The spokesperson for the Attorney General might wish to explain Mr. Nandlall’s statement in the National Assembly on April 9, 2013, once again disclaiming his membership, but notifying the House that he had have received the commitment that by July, 2013 “the new rules are going to be promulgated and the reason advanced for the delay was the necessity in the opinion of the Judiciary to address the serious backlog of cases first.”

4. That so-called separation of powers principle precludes any role for Mr. Nandlall in the work of the Rules Committee. Fact: Section 67 of the High Court Act makes Mr. Nandlall an ex officio member of the Rules Committee, unless he nominates someone else as his representative. He is more than a disinterested by-stander, or does Ms. Anandjit disagree?

Incidentally the PPP/C Manifesto for the 2011 elections claims credit for “strengthening of judicial administration, including the issuing of new rules by the Judicial Service Commission, and new High Court rules.” In other words the Administration takes credit for perceived successes but distances itself from failure.

Errors and Omissions
By coincidence, two days after I had publicly raised the matter of the Rules and the Judicial Review Act the Chancellor (ag.) wrote to the President of the Guyana Bar Association advising him that the Rules laid in the National Assembly “have had to be revised because of errors and omissions”. The problem is that neither the public nor the Guyana Bar Association was aware that the Rules which had the force of law (but not in operation) were being revised by the Commonwealth Secretariat at the request by the Chancellor (ag.).

But that is no revision – it is complete overhaul which has taken the Rules from 337 pages to 886 pages! Amazingly the Guyana Bar Association has been asked to have its membership study the Rules and provide the Chairman of the Rules Committee with comments, recommendations and identification of obvious errors, all within three weeks. Speaking as an individual and not as Secretary of the Bar Association I would describe this request as impossible as it is absurd.

Guyana’s justice system has received from USAID, the IDB and the Commonwealth Secretariat billions of dollars of loans, grants and other forms of assistance over the past ten years. This is in addition to the billions from the National Budget. Yet we have little to show for it: in fact in many respects it has been a disaster. The score sheet is frightening, whether it is the Rules Committee, the Judicial Services Commission, the Ministry of Legal Affairs or the Law Revision Commission:

1. After four attempts and at least hundreds of millions spent, we are hardly any closer to new Rules of Court than we were ten years ago. The public and possibly the National Assembly were kept completely in the dark about the status of the Rules until this past week.

2. The country’s two top judicial positions being held by acting appointees for around eight years.

3. The legal administration having operated without a constitutionally mandated Judicial Services Commission until it became known after another fiasco. One assumes that the Attorney General would be the one advising the President on the appointment of the members of the JSC.

4. A Guyanese, Mr. Rabi Sukul, returned after decades and was appointed by the Judicial Services Commission as a judge of the Court of Appeal even though he was not ever a magistrate anywhere. It turned out that the appointee had a complaint of professional misconduct pending with the Law Society of England when his appointment was made.

5. When the Law Society disbarred him he was called upon to resign with immediate effect by the Chancellor, instead of having his matter heard by a Tribunal as the Constitution requires. The disbarment has been subsequently lifted.

6. Calls for an investigation to inquire into and make recommendations for the better functioning of the Judicial Service Commission have been ignored. In that regard the National Assembly, the Attorney General, the legal profession and others must accept responsibility for the colossal mess in which the country finds itself.

7. The Judiciary was granted financial autonomy in its financial affairs as the Constitution requires despite the failure of the Project Execution Unit headed by the Chancellor to make any real progress on court administration and the establishment of “financial practices and procedures approved by the National Assembly”.

8. Backlog of live cases continues to mount and is apparently dependent on funding.

9. The revised Laws of Guyana published after five botched attempts involving the expenditure of yet more hundreds of millions – and possibly as much as a billion – have turned out to contain serious errors and omissions, to use a phrase from the Chancellor (ag.). The Attorney General was forced to admit to errors but has failed to identify them or to say when they will be corrected.

7. A building constructed for the Family Court has been lying idle for years without the Court becoming operational.

11. Law Reform has been rendered non-existent despite the urgent need for legislation to address serious deficiencies in the laws.

12. There is no hope on the horizon either in the Ministry or the Judiciary as no one takes responsibility and there is mutual tolerance for demonstrated incompetence.

Let us remember this column was initiated in connection with the Judicial Review Act which requires Rules of Court to come into operation. It is clear that those 887 pages of rules will not come into operation for at least another two years. It is equally clear that the country cries out for the operationalising of the Act.

I am using this column to call on Mr. Nandlall as member of the Rules Committee and the Bar Association’s nominee thereof, to call for publication of the Rules specific to the Judicial Review Act. Since the 2010 Rules have not been revoked they remain proper law and since the relevant Part (49) is almost entirely identical to that of the corresponding revised Rules there is absolutely no reason for further delay.

And on the wider issue, I am again calling for a reform of the Judiciary, including the Judicial Service Commission, fully aware of the relevance of the Constitution and the Rules Committee. There is urgent need for oversight of the judiciary and better administration over its operations and finances.

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