THIS BILL MAY BE UNCONSTITUTIONAL

Apr 26, 2009 Features / Columnists, Peeping Tom

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There are thousands of persons inside and outside of Guyana who are greatly concerned about the slothfulness of our judiciary. Cases in many instances take a long time to be heard and usually drag out for a long time.

When you consider also the decisions of the Courts can be appealed, and now can be appealed all the way to the Caribbean Court of Justice, what we have is a situation where justice can take a long time in coming and when it does come may have lost the desired effect of those who were seeking it in the first place.
I believe that the administration is genuinely concerned about the situation within our Courts where we are told there is a backlog of some 21,000 cases. I believe that the judiciary itself is concerned about the image that is being harboured about this backlog and the perceptions of slothfulness within our Courts.

No doubt because of these concerns, a Justice Administration Improvement Project has been launched to seek to move things along. But as with all foreign–funded projects there are bound to be limitations and we shall have to wait and see how effective this program has been.
There have been many solutions proposed to alleviate the backlog in the Courts. One which I have seen mentioned relates to the present system of judges having to take notes. It has been argued that if this burden can be relieved from judges, as in other developed jurisdictions, then it would save a great deal of time.

It may, but I do not see it saving enough time to significantly reduce the backlog in the system with a few years. That backlog can only be reduced by removing those cases which are no longer being pursued, as well as those which are frivolous. I am told that this is being done, but given the litigious nature of our society there will still be a large backlog of cases.

Many years ago in this very column I had proposed a system which if attempted may have helped considerably. I had proposed that along with the changes that are taking place, the government should invite ten retired judges from the United Kingdom and other parts of the Commonwealth to come to Guyana and hear cases.
Consider, for example, what ten new judges hearing murder cases would have on our system. It will for example immediately ensure that almost all the cases listed for trial in the assizes are heard and disposed of, and it will ease a great burden on our prison situation.

We have a great many lawyers also coming out of law school and many others who are getting old. I am against inexperienced lawyers being sworn in as magistrates. But I also believe that for each Magistrate Court in Guyana we need two magistrates sitting rather than the one which prevails in many instances. I am sure that with some effort an attempt can be made to encourage some experienced lawyers to have stints as magistrates even if it is for a short period.

If my suggestion to invite ten new judges had been accepted years ago, it may have had an impact by now. It should still be considered because statistically it is impossible for a change in the way judges notes are recorded to reduce in any appreciable way the twenty-one-odd thousand backlog of cases.
One measure which was introduced last week to deal with the problem is a time limit in which judges have to write their decisions. I understand the rationale behind this decision. And I am sure that those behind the passage of this Bill as well as those who supported it in the National Assembly are sincere about trying to make our judicial system perform better.

I however believe this Bill should be recalled. I believe it is in abrogation of Article 122 A of the Constitution of Guyana which guarantees the independence of the judiciary. The legislature can pass bills granting to our Courts certain powers, but I believe that in passing laws which direct how the judiciary should be managed, the legislature has trespassed into territory which is the exclusive domain of the Courts and which is also in violation of the principle of the separation of powers.

While I am sure there is no intention to exercise control over the judiciary; while I am sure matters relating to what actions are to be taken against judges who do not complete their decisions on time will be left to the Judicial Service Commission and the top officials of the judiciary, this is of little consequence in terms of the constitutionality of the Bill.

The very fact that we have legislation imposing time limits is sufficient to annul such legislation. I therefore believe that once this legislation in challenged it will be abrogated by the Courts. The interesting part is that no one is likely to challenge the legislation, more especially since it had unanimous passage through the parliament.

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