THE ELEPHANT IN THE ROOM


“Justice in not a cloistered virtue; she must be allowed to suffer scrutiny and respectful, even though outspoken, comments by ordinary men.” So said Lord Atkin, one of the last century’s greatest judges, in 1936. Since then, followed by other such statements by Lord Denning and others, criticisms of court decisions is normal, except that when I have done so in the past, I have been criticized by senior lawyers who should know better.

On 28 December, 2019, the Guardian published a sweeping criticism of the UK judiciary by Michael Howard, former Conservative Party Leader and barrister. The headline read “Michael Howard said judges distorted law in prorogation ruling.” He argued that the expansion of judicial review and the Human Rights Act have facilitated the making of political decisions by the courts. He claimed that prorogation was a parliamentary decision, and the judiciary has no business pronouncing on its legality. Lady Hale, the president of the court, said that the prorogation was not a parliamentary decision. It had been made by Prime Minister Johnson.  

Recently, two academics attached to the UWI, Professor Cynthia Barrow-Giles and Dr. Ronnie Yearwood, engaged in a public discussion of their paper “The Judiciary and the 2020 Guyana elections.” Referring to the setting aside of the several decisions of the Court of Appeal by the CCJ, Barrow-Giles said: “Some of the judgments of the Court of Appeal are highly questionable.” The extensive remarks made by the academics were tame and constructive. I wrote about the issue last week (“Judicialization of Politics in Guyana”).

The Chancellor(ag) of the Judiciary, the Honourable Mme. Yonette Cummings-Edwards, responded to comments on “social media and otherwise,” as she has every right to do, by bemoaning the shortage of judges and the way in which it negatively impacts the delivery of justice. The Chancellor did not respond directly to the remarks of Professor Barrow-Giles and Dr. Yearwood. Neither did the Chancellor make any reference to the elephant in the room – the absence of a Judicial Service Commission.

Attorney General and Minister of Legal Affairs responded by reiterating the right of criticism of the judiciary, which the Chancellor had not challenged, and assured the public that the issue of shortage of judges will be addressed soon. The AG has said so before and nothing has happened. He made no reference to the above identified elephant in the room and how the concerns of the judiciary, as expressed by the Chancellor, are going to be addressed, in its absence.

Quite apart from any shortages of judges in the High Court, the complement of judges in the Court of Appeal has been 3 out of 5 for more than a decade and a half and the vacancies have not been filled. Since the elections, the appointment of the Judicial Service Commission, which is the only body that can make recommendations for the appointment of judges, has been held hostage to political considerations, namely, the demand by the Government for Opposition Leader, Joe Harmon, to acknowledge the legitimacy of the government as a pre-condition for consultations.

This unsustainable posture has now been clarified by the President, who confirmed recently that he will perform his constitutional duties without preconditions. This was repeated by Vice President Jagdeo in a subsequent press conference. The expectation now is that the President will invite Mr. Harmon to meet for consultations. We await such a development. It should be noted that I have already called for the establishment of the constitutional commissions which can only occur after consultation.

In addressing the issue of the shortage of judges, the government may wish to consider filling vacancies in the judiciary. Currently, the full complement of judges is 20 for the High Court. But there are only 12 judges, just over half. The full complement of the Court of Appeal is 5. The minimum for a sitting is 3, so that the court actually functions, but not at full capacity. New civil procedure rules for the High Court have all but eliminated the back log and litigants can expect their matters to be concluded in not more than 18 months, depending on the judge, lawyers and the complexity of the matter. Many are concluded in less time. There is a backlog in the Court of Appeal of about 5 years due principally to the chronic shortage of judges in that court.

It is believed that the number judges for the Court of Appeal was fixed in 1970 at 5 so that if the full bench sat in a particular matter, an extremely rare event, there could be a majority decision, if all judges did not agree. Also, since 1970, the volume of cases has increased several times over. The number of judges should, therefore, be increased to 7, or at least 6, with the Chief Justice, who is an ex officio Justice of Appeal, but functions as head of the High Court, being added as an additional member, if necessary, for a full bench sitting. With 6 judges, two panels of 3 can be sitting continuously so that the backlog is cleared and justice is not delayed.      

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