Appointing Senior Counsel – wrong priority, wrong approach

Introduction
Depending on the background and interest of who one asks, their responses to identify the principal challenges facing the legal system could include the length of time cases take to conclude; the non-pursuit of cases because the victims don’t want to proceed; the unscrupulousness of some lawyers, especially when dealing with “vulnerable” clients; for groups who deal with women and child victims of violence, the willingness of many lawyers to defend their client by subjecting the victim to a second abuse; and access to justice.

Those with a greater familiarity with the legal system may identify the thousands of cases still to be scheduled for hearing by the courts (a case of justice delayed being justice denied); the non-functioning of the Judicial Service Commission, charged by the Constitution with responsibility to make recommendations on the appointment of judges and for the appointment, discipline and removal of the majority of senior judicial officers; the inordinate delay by some judges in providing written decisions despite the passage of legislation to remedy this mischief; the quality of submissions by attorneys and the resulting quality of the decisions by the courts; and misconduct by attorneys at law – senior and junior – including the egregious violations of the code of practice for attorneys prescribed by law.
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An embarrassment rather than a celebration

Introduction
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.
Continue reading An embarrassment rather than a celebration

The making of the Supreme Court a budget agency has placed the judiciary under threat

While the independence of the judiciary is often couched in lofty concepts about separation, one from the other, of the three arms of the state, the essence of it all is empowering, securing and protecting the judiciary and its individual members in their fearless and uncompromising defence of the fundamental rights of the citizens.

To ensure that independence, constitutions – including Guyana’s – provide elaborate mechanisms and safeguards to protect the judiciary and its members. These include security of tenure; salaries that are fixed and not subject to a vote by the National Assembly; Parliament can only add to the powers and jurisdiction of the Supreme Court but cannot curtail them; the power to punish any person for their contempt; separation of the Judiciary from the other branches of the state; and immunity from criminal and civil actions in respect of judicial decisions.

Despite this formidable armory, Rudolph James, a Professor in constitutional law, in The Constitution of Guyana published in the 2006 Special Issue 35-36 of Transition, a publication of the Institute of Development Studies of the University of Guyana, writing of the conduct of the judiciary during an earlier era noted that while the leadership of the country set about to miniaturise the judiciary, the “Guyana judges largely contributed to their subservient status.”

Professor James was optimistic that with the commitment to democracy expressed by the new ruling party in 1992 “one expected a transformation of the judiciary …” But a decade later James lamented the many acts of indiscretion of the leadership of the ruling party including the late Mrs. Jagan, current President Jagdeo, Dr. Roger Luncheon and even the government’s high ranking judicial officers, acts that would in a truly democratic state be treated as contempt of the court. Instead, Mrs. Jagan won a nod of approval from a senior counsel when in his and the presence of the then Chancellor she disdainfully threw over her shoulders a judicial notice.

The onslaught has continued, sometimes with the approval of some of the very judges whose sacred duty it is to ensure the independence of the judiciary and their own. They have not raised their voices as Jagdeo undermined the judiciary with financial and fiscal incentives, embarrassed its membership by challenging their competence and judgment, emasculated them with laws that are clearly in violation of the Constitution and dared them to caution him when he pronounces on matters that amount to contempt of their proceedings.

The Time Limit for Judicial Decisions Act is only the most recent case of the legislature seeking to control the conduct of individual members of the judiciary. But Jagdeo whose capacity to use and misuse public money will go down in presidential folklore knows that the judiciary’s independence can be compromised both at the personal and institutional levels. For the latter the tool chosen is the Fiscal Management and Accountability Act 2003, the most insidious piece of legislation the PPP/C has passed to control some key constitutional bodies including GECOM, the Audit Office and the judiciary. By making the Supreme Court a budget agency, the judiciary’s independence has been made subordinate to the legislative and the executive arms, bringing it under the control of the Minister of Finance. Moreover the judiciary is treated on the same basis as the regions and ministries whose financial misdeeds are legendary.

The Act seems clearly repugnant to several articles of the Constitution. Article 122 A (1) provides that the “courts and all persons presiding over the[m] shall exercise their function independently of the control and direction of any other person or authority; and shall be free and independent from political, executive and any other form of direction and control”, while Article 122 A (2) makes all courts “administratively autonomous and shall be funded by a direct charge upon the Consolidated Fund.”

When an entity like the judiciary, the Audit Office or Rights Commissions, or a payment like the public debt is funded by a charge on the Consolidated Fund it is included in the Estimates as a block sum and does not require a debate or subject to a vote by the National Assembly: Article 218. And Article 217 sets the mechanism for the payment of the sum so charged by requiring that the “moneys charged …shall be paid out of that fund by the Government of Guyana to the person or authority to whom payment is due.”

To add clarity and reinforce the court’s independence even in financial and administrative matters Article 222 A states that the expenditure shall be by way of an annual subvention. But by making the judiciary a budget agency, it now has to answer to the Finance Secretary about its affairs and is required to provide information and explanations to the National Assembly. Worse, under the Act the Finance Secretary can designate who the head of the judiciary should be for purposes of the Act!

Not that the Constitution expects a lower standard of accountability or financial management in the judiciary than it expects of budget agencies. Indeed Article 122 A (2) imposes on the courts the obligation to “operate in accordance with the principles of sound financial and administrative management”, similar standards set for budget agencies.

The questions being asked is if the judiciary, the guardian of the constitution and the protector of the citizens, can be so easily emasculated, what hope is there for the citizens? If it cannot defend itself, how will it defend them?