Court of Appeal still in limbo after retirement of judges

With no clear indication of when the Court of Appeal will resume hearings since it last sat a month ago, several legal minds are concerned and say that the former Chairman of the Judicial Service Commission (JSC) and Chancellor Justice Carl Singh, who retired last month, should take some of the blame for the situation.

They say that while the JSC did submit a list of four names— two appointments for the Court of Appeal and two for the High Court—to President David Granger almost one year ago, Justice Singh displayed no sense of urgency to have the matter sorted prior to his leaving office last month. Additionally, they say that Justice Singh failed in his responsibility while holding office for many years, under successive governments, to bring the court and to a larger extent the entire judiciary up to strength.

Article 128(1) of the Constitution provides that judges, other than the Chancellor and Chief Justice, are appointed by the President “who shall act in accordance with the advice of the Judicial Service Commission.” Article 128(2) also provides that “the President shall act in accordance with the advice of the Judicial Service Commission and appoint a person to act in the office of Justice of Appeal or Puisne Judge, as the case may be.”

Granger is yet to publicly indicate his intention with respect to the list.

Sunday Stabroek made contact with Justice Singh last Thursday but he said that he was scheduled to leave the country in two hours, hence a meeting of any kind would be impossible. When asked whether he could respond to questions from this newspaper over the telephone he responded in the negative, while saying that he did not know who he was speaking to.

The week after Justice Singh retired, Justice of Appeal BS Roy proceeded on pre-retirement leave. Justices Singh and Roy were the only two permanent appeal judges; the minimum needed for the Court of Appeal to sit is three.

When Sunday Stabroek made enquiries at the Court of Appeal, a senior official there said that the last sitting was on February 27, when a decision was given in the cross dressing appeal case. The official said that there has been no indication as to when the next sitting will be but at the moment efforts are being made to get judges “confirmed and assigned.”

The opposition PPP’s legal advisor and former Attorney General Anil Nandlall told Sunday Stabroek recently that three weeks ago Minister of State Joseph Harmon invited Opposition Leader Bharrat

Jagdeo to attend a consultation with the President with regard to the appointment of a person to act as Chancellor. He said Jagdeo was told that there was great urgency because there was no Court of Appeal functioning and there was no person acting as Chancellor to convene that court and President wanted to appoint someone to act in that position before he left the country for a scheduled trip. “In those circumstances, recognising the importance of filling the vacancy which exists in the office of the Chancellor, the need to have such a person appointed so that the Court of Appeal can be convened into sitting and because the President was leaving the country the following day, the Leader of the Opposition waived the constitutionally outlined procedures and protocols which were long established in relation to such consultations and which entailed the President writing to the Leader of the Opposition indicating the name of the person to whom the consultation will relate along with the CV of that person and then a date is then fixed for the consultations to take place,” Nandlall said.

He indicated that these protocols were waived by the Leader of the Opposition because he recognised the importance of a temporary appointment. As a result, he agreed to the meeting, which also resulted in consultations in relation to a person to act as Chief Justice. Nandlall said the President proposed Justice Yonette CummingsEdwards for acting Chancellor and Justice Roxane George SC for acting Chief Justice and Jagdeo indicated that he needed one week to deliberate on it and get back to the President.

Catastrophic development

“The President said to him that this matter is of grave urgency and that he would not be able to wait a week and he will go ahead with the appointments. Again the Leader of the Opposition did not object,” he stressed, before adding that three weeks later they still have not been sworn in and this has resulted in the Court of Appeal being nonfunctional. “This is the first time since 1966, when the court was established, that it has been dysfunctional for over a month. The Bar Association, whose existence now I am clearly unsure about, has not uttered a word. The Guyana Association of Women Lawyers has not uttered a word. The Berbice Bar Association is also silent. I am not hearing either from the Guyana Human Rights Association, Red Thread or Transparency International on this critical matter of constitutional, human rights and democratic significance,” he said.

Noting that he has also heard nothing from the international community or the embassies of the ABC countries, Nandlall questioned whether they are not concerned that the highest court in territorial Guyana is not functioning and that an important link in the judicial chain is absent.

“I recall that when the PPP/C prorogued Parliament, a procedure which is actually provided for by the Constitution, these same organisations, including the embassies to which I have made reference, were behind us like if the sky was falling. How can one now rationalise their silence when an entire segment of the judiciary has gone dormant?” Nandlall said.

“The impact that this nonfunctional court is having on the justice system, the backlog of cases and the constitutional rights of litigants to have a court ready and able to hear their legal grievances is catastrophic,” he stressed, while adding that this situation can affect lawyers’ ability to file matters in the Caribbean Court of Justice (CCJ) as leave has to be first granted by the Court of Appeal.

President shouldn’t be blamed

Several attorneys, while expressing concern about the situation, said that it was unfair to blame the president as the wheels were set in motion long before he took office.

One attorney, who did not want to be named, explained that the Court of Appeal never had a full bench of judges, which is five, and this dates back to when Janet Jagan was president. He stated that a complement of four judges was the closest it came.

“Before then the court was running like a cowboy court. I am not saying that the President is responsible per se… So much can be fixed with a stroke of a pen. The person responsible for the JSC is the Chancellor. He/she convenes the JSC and is the head,” the attorney said.

The attorney also stressed that following the departure of Justice Desiree Bernard from the Office of the Chancellor, there were many vacancies across the entire judiciary and when Justice Singh took office he did not take steps to rectify this situation.

Stating that the “judiciary was run into the drain,” the attorney noted that Justice Singh started appointing temporary magistrates and it was only when he was on the verge of retirement that they were confirmed. This would have been about two years after they were appointed.

It was made clear that the JSC, which had the authority, made no efforts to fill gaps in the judiciary and this has now resulted in a huge backlog of cases.

The attorney, in part, blamed this on the administrative flaws existing in the judiciary. It was pointed out that the JSC in 2016 only met on two occasions. “The JSC is like a cabinet. The cabinet is an important component of the executive and it meets once a week but yet we have the JSC which is so important for the judiciary meeting twice in a year,” he said.

The attorney noted that Granger took office in 2015 and it is up to him to decide whether to act on the list. The attorney pointed out that if the President is not pleased with the names, he can stay silent.

In January, Granger confirmed that he was in possession of the list of nominees and said that an announcement would be made when the time is right. “I am considering the list which I have before me and in due course the announcement will be made,” Granger said. Asked how long before the announcement would be made, he responded, “Well as long as it takes.”

Speaking about backlog, the attorney said that the High Court only has about half of the 22 judges it needs to function effectively, while the magistrate’s courts, which handle about 70 per cent of the cases reaching the judiciary, is worse off.

This situation, the attorney said, is not Granger’s creation as it existed long before he took office. Additionally, several presidents before him could have ensured the situation was rectified but just sat back and allowed the situation to get worse, he pointed out.

Sunday Stabroek was informed that in 2014, 17 attorneys were interviewed for the position of magistrate but only four were chosen. Earlier this year, two out of eight who applied were appointed and each is now handing two courts—a situation which the attorney said is grossly unfair, particularly since there have been ongoing calls for the complement of magistrates to be increased.

“There have been administrative flaws in the system. Neither Granger nor Ramotar can be held responsible for what happens in judiciary. It is the JSC… Everything changed after Justice Bernard,” the attorney said.

Meanwhile, another attorney, who also did not want to be named, told this newspaper that the appointment of judges to the Court of Appeal is the only solution to the existing problem. The attorney said that people need to take to the streets over the matter. “Powerful governments fell because they did not respond to the needs of the people,” the attorney said, before adding that the inability of the court to sit for an entire month is troubling. He explained that it is the Chancellor who has to set the timetable for sittings but one would expect that the court will sit every week.