Jul 02, 2008 Letters Comments Off on Too often, we harbour unfounded suspicions of persons appointed to positions of responsibility
I wish to thank the real Sherwin Campbell for his kind comments on my recent letter which dealt with problems at the High Court of Guyana.
However, Mr. Campbell posed a number of questions and requested answers to the following: –
(a) What assurance is there that a person who has just been appointed will write judgements, unless he is put to the test?
(b) Why does one not want to act and make his or her mark and seek justification for permanent employment?
(c)That my suggestion to appoint part-time judges will make more actors.
(d) Can a practising lawyer who accepts employment as a part-time judge be free of the stigma of apparent bias?
(e) Who can prevent a litigant in a matter before a part-time judge from walking into the chambers of the part-time judge to brief him?
(f) Historically, how many senior lawyers, appointed years ago as acting judges, performed satisfactorily?
(g) How many cases did each one complete within three months?
(h) How many of their judgements were upheld by the Court of Appeal?
I will deal with the questions in the order as posed above. The duty of making judicial appointments rests with the Judicial Service Commission (JSC), and this constitutional body is made up of the Chancellor of the Judiciary, the Chief Justice, Chairman of the Public Service Commission (PSC) and two other members who are no longer practicing at the Bar and/or holding judicial appointments.
It is expected that potential appointees would be known by the Chancellor, Chief Justice, and most likely by the two last mentioned members who had practiced at the Bar and or held judicial appointment as a judge.
I would expect that, as a result, these members of the JSC would be able to assess potential appointees to determine their suitability in writing judgements, as during the course of practice at the Bar written and oral submissions, skeleton arguments and other matters have to be attended to by an attorney-at-law, and thus the members of the JSC would have been able to assess first hand the all-round ability of an attorney-at-law.
Do not forget that judges will, during their conversations with each other, indeed speak about the merits and demerits of attorneys-at-law appearing in their courts.
However, the crux of the matter is not whether a judge will write his or her judgement, but when?
That is the problem which the Bar, the Judiciary and the public face.
All potential judges have passed their examinations after several years of study, submission of assignments and the ultimate success at the examination. They can all write, but must be responsible and appreciate the importance of their duty.
The assurance that they will write their judgements or memorandum of reasons within a reasonable time will soon be, I hope, regulated by law, which should be passed by our Parliament this year. If they do not, then adios!
The next issue, (b), is that a judge should act and make his or her mark before being appointed. I do not disagree with this proposition in principle, but in light of what has been occurring over the years, I would not advise anyone to take this course, unless the intention at the outset is that it will be an acting appointment. Let me state the facts and I hope that you will concur with me.
We have at the moment two judges who are still acting after over six years on the job respectively. They have both been doing criminal and civil matters, adjudicating in Georgetown, Berbice and Essequibo. They have sat on numerous, numerous occasions in the Full Court, and have decided on cases of great importance.
One of these two judges will shortly be retiring, and I do feel that both of them should have been permanently appointed a long time ago, or their services should have been terminated.
The question I wish to ask the members of the JSC is: why have you allowed these two judges to continue if they were not doing a good job? We have acting for years a Commissioner of Police.
We have had acting for several years a Director of Public Prosecutions, Commissioner-General of the Guyana Revenue Authority, and other functionaries. More importantly, Justices Roxanne George-Wiltshire, Drakes, Rishi Persaud and Reynolds were all permanently appointed.
Recently appointed Court of Appeal Judge Ramson was also permanently appointed. As is said, I do not think that goat would have bitten any new appointee! I therefore rest my case and make a plea to the JSC to put things right by appointing these two judges permanently.
As regards (c) I do believe that this is being mis-understood by Mr. Campbell. Part-time judges should only be appointed to try and get rid of the heavy back-log which is drowning the judiciary, and they should be given a number of cases to do. Once their assignments are over, they may not be needed. I do not think that they will fall into the category of “actors”.
I believe that (d) and (e) can be taken together, and my first response is that there is a code of ethics and law by which lawyers are bound. I wish to say that there are very few “rotten apples” at the Bar, and these are known in and out of the profession.
The ethical thing to do, and the law demands it, is that where a litigant is known to a presiding magistrate and/or judge, and where there may be a conflict of interest, then a magistrate and/or judge should recuse himself from that matter.
Thus, if, as in the example of Mr. Campbell, a litigant goes to a part-time judge to brief him when the matter had been listed or has commenced before that part-time judge, then that part-time judge should recuse himself from the case and report the matter to the Police for them to ascertain whether an attempt to and/or a breach to interfere with the administration of justice has not been committed.
As regards (f), (g) and (h), I am unable to give the number and names of the persons who were appointed to act over the years; and from all reports, they all, by and large, performed creditably.
The record of the number of cases they respectively did is not a public record, and I am not certain if there is any complete record of this.
How many of their judgements were upheld by the Court of Appeal is also difficult to give, and, unfortunately, it is a great disgrace that our law reports are decades behind.
This is one area which I know that Chancellor Carl Singh (ag.) is trying to resolve, and I wish him well.
I would, however, state that our judicial bench has been graced by many famous senior lawyers who acted as judges, amongst which were the late B.O Adams Q.C, the late Sir Lionel Luckhoo S.C., Rex McKay S.C, Miles Fitzpatrick S.C, and many others.
I would wish to conclude that, as a growing and developing democracy, we are too often suspicious of the integrity and ability of those persons who are appointed to positions of responsibility. We need to give them a chance, and not always believe that politics is always a consideration. Most times it is not!
K. A. Juman-Yassin
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