The judiciary, along with the executive and legislature, is one of the three constitutional pillars of the state. But the two most important positions in the judiciary, the Chancellor and Chief Justice, have been held under acting appointments for approximately two decades. The last confirmed Chief Justice was Desiree Bernard from 1996 to 2001 and last confirmed Chancellor was the said Desiree Bernard from 2001 to 2005.
These positions were held under acting appointments since those times by Carl Singh, Ian Chang, Yonette Cummings and Roxane George. This situation is so unsatisfactory that on two occasions in the past two Presidents of the CCJ have called for the appointments of the Chancellor and Chief Justice. In November 2017 Sir Denis Byron, the then President of the CCJ, in an address to the Guyana Bar Association, called for the acting appointments to these positions to be confirmed. He underlined the grave dangers to judicial independence arising from the failure to confirm the appointments of Carl Singh and Ian Chang. In April President Adrian Saunders called for the confirmation of the appointments to these positions.
There is currently no obstacle to confirming these appointments or, if the Government so chooses, to seek out other candidates to place before the Leader of the Opposition for his consent, which is required under the constitution. While at the current time the Leader of the Opposition has declined to be consulted, he has publicly stated that he has no objection to the confirmation of the appointments of the current acting incumbents. The President has indicated that he is not yet ready to deal with these matters. He has not indicated when he will be ready or whether there is any particular obstacle to proceeding with appointments of Chancellor Cummings and Chief Justice George. The President’s consideration of the matter in his ‘deliberate judgment’ cannot be open ended. The President has a lawful responsibility under the constitution to make these appointments. It is not contemplated by the constitution that if there is no obstacle to the appointments, that the President’s ‘deliberate judgment’ can serve to indefinitely delay the performance of this vital constitutional duty. The Attorney General is expected to advise accordingly.
Over recent years, with the implementation of the Civil Procedure Rules, the work of the High Court has been transformed. Cases which took five to seven years to complete are now concluded in twelve months. This advance in the work of the High Court, presided over by Chancellor Cummings and Chief Justice George, and which could not have been accomplished without their indefatigable commitment, was even more dramatically improved with the introduction of hearings of matters in the High Court, Court of Appeal and CCJ by electronic means. While these improvements have been nothing short of spectacular, similar attention has not been made to the Court of Appeal and the Magistrates Courts. It takes five or more years for an appeal to be heard. The simple reason is that the complement of five judges in the Court of Appeal has not been filled for over fifteen years. For all this time the Court of Appeal has been short of two judges, with only three judges burdened with the load of five. The Court of Appeal now needs six judges to have two panels sitting simultaneously. This would require a constitutional amendment, which the Opposition should have no difficulty in supporting. I do not know enough about the Magistrates Courts to offer comments. But I do know that the backlog there is also a serious problem.
Like the confirmation of the appointments of the Chancellor and Chief Justice, or the otherwise filling of the positions, there is no known obstacle to the appointment of the Judicial Service Commission. This is the body that appoints magistrates, judges of the High Court and of the Court of Appeal. Currently there are eleven judges, one having recently retired. Another is due to retire shortly. The reduced complement of judges will jeopardise the great achievements which have been made recently because the large volume of litigation that inundates the High Court every day gets larger every year. For the Chief Justice to administer this volume and find judges, whose diaries are usually full, to manage this inundation, is already an impossible task. The High Court Act provides for twenty judges. So, there is a solution. But in the absence of a Judicial Service Commission, these potential solutions cannot be addressed.
The Attorney General is accessible to the legal profession, and it is known that he is conscious of these problems. But he is a member of a collective called a Cabinet which is headed by a chief executive called the President. The failure to appoint a Chancellor and Chief Justice and the Judicial Service Commission is a clear indication that the collective does not consider the judiciary as an agency of any importance or its problems as a matter of urgency, notwithstanding its constitutional status. This is extremely shortsighted. Investors are flooding into Guyana. Among their prominent concerns are the integrity of the security forces and the efficiency of the judiciary. The former is under public scrutiny. Problems affecting the latter remain unaddressed for no known reason.