Once again, the judiciary is under public scrutiny. Once again, criticisms surround the perennial delay which afflicts the legal system. Among a myriad of measures to tackle the problem of judicial delays, the Government has enacted the Time Limit for Judicial Decisions Act, No. 9 of 2009. The Bill was assented to since August, 2009; but unfortunately, it does not appear that this law is being complied with by the judiciary. Indeed, I am unaware of the existence of a mechanism to ensure its compliance.

In my humble view, this legislation is one of the most progressive measures conceived to deal with the delay which affects the justice system. In my speech in Parliament supporting this Bill, I outlined in great detail the history and importance of the Bill and highlighted the travesties which delayed justice occasion.
I set out hereunder what I said in Parliament.

Historical Background
I rise to make my contribution to this debate. Perhaps the best starting point is to situate this Bill in its historical context. Recall that in 1999, through a parliamentary process, the Constitutional Reform Commission was established. This Commission comprised of representatives of all the major sectors of this country, including representatives from all the parliamentary political parties, the labour movement, the religious organizations, the private sector, the farmers, Non Governmental Organizations, professional organizations (for example, the Guyana Bar Association) and ethnic based organizations. Indeed, this Commission boasted representatives of every recognizable interest in this country.

This Commission was invested with the mandate to hold consultations with the people of this country, their leaders and representative organizations and to make recommendations for constitutional reforms.

After a two-year period during which many meetings and consultations were held throughout this country, the Commission completed its work and submitted its recommendations.

Amongst those recommendations made was the recommendation that the Constitution be amended to establish a mechanism that obliges judges to render their decision in a timely manner and for a penalty to be imposed when they persistently fail to do so.

The penalty recommended was the ultimate sanction of removal from office. This mechanism was codified and incorporated as part of Article 197 (3) of our present Constitution. It reads thus:

197 (3)    “A Judge may be removed from office only for inability to perform the functions of his office (whether arising from infirmity of mind or body or any other cause) or for misbehaviour or for persistently not writing decisions or for continuously failing to give decisions and reasons therefor within such time as may be specified by Parliament and shall not be so removed except in accordance with the provisions of this article.”

Parliament is now specifying the time.

I submit therefore that, in a nutshell, this Bill is the expression of the will and the views of our people, which they have expressed to the Constitutional Reform Commission and which we are mandated and indeed duty bound to effectuate. This Bill, perhaps more than most promulgated in this House, is a manifestation of democracy at work – that is the enactment of a law specifically called for by the people. At this juncture, it is also appropriate that I remind this House that one of the platforms upon which the PPP/C campaigned in the 2006 elections, was a promise to the people of this country to make the necessary reforms to the judiciary to ensure that justice is delivered to them in a more timely manner.
This Bill is part of that package through which we are delivering this promise.

To appreciate its true value, this Bill cannot be viewed in isolation. It is but only one link in a multifarious chain of measures designed to bring dispatch and expediency to the administration of justice. Some of the measures which have already been implemented in recent times are:

(i)    in the area of civil law, the establishment of an alternative dispute resolution and/or a mediation process as part of our legal system whereby litigants can have their disputes settled speedily outside of the traditional trial scenario which can take some times as long as ten (10) years to complete;

(ii)    introducing legislation which allows for plea bargaining thereby obviating the need for a trial, this time at the criminal bar;

(iii)    promulgating legislation which permits for paper committals, thereby dispensing with the need for preliminary inquiries in certain indictable matters; these preliminary inquiries sometimes take years to conclude;

The Sanctity of the Office of a Judge

As a lawyer it would be remiss of me if I do not recognize that this Bill provides a mechanism for the removal of a judge from office. It is well known that judges enjoy high security of tenure under the Constitution.

Indeed, before the Constitution was amended in 2001, the only basis upon which a judge could be removed from office was infirmity of body or mind or, for misbehaviour. This position had obtained unaltered from the Independence Constitution of 1966, the Republic Constitution of 1970 and the Executive Presidency Constitution of 1980.
The 2001 – 2002 Constitution adds persistent and continuous failure of a judge to give decisions, and reasons therefor, as an additional ground for removal.
As I have stated above, the Constitution delegated to Parliament the responsibility to stipulate the time frame within which those decisions must be given. This Bill presents those time stipulations. Accordingly, it is this Bill that contains the catalyst from which Article 197 can be enabled.

This Bill therefore has grave ramifications and consequences which must not be glossed over in this debate.

It impacts in a fundamental way on the judiciary, an important arm of Government. It impacts directly upon the security of tenure of a judge – the foundation upon which the independence of the judiciary rests.

Judges hold and have always held a special place in society. Our experience is no different. Indeed, in living memory, only one judge has ever been removed from office in Guyana.

The allegation against that judge was misbehaviour. As expected, the judge challenged his removal from office through legal proceedings. The written decision of our Court of Appeal in that case received international acclaim and is reported in both the Commonwealth Law Report and in the West Indian Law Report.

Highlighting the special status that a judge enjoys in society, Chief Justice Aubrey Bishop (as he then was) made the following seminal observations:

“Disclosure that a judge has been suspended from office has a prime news element that is universal. The public, within the particular State or territory from which the announcement emanated and beyond, becomes interested in receiving the details; some are curious, others are concerned. However, the common reason underlying both types of interest lies in the fact that the official act of suspending a judge is a rare occurrence. Society attributes honour, if not veneration, learning, if not wisdom, together with detachment, probity, prestige and power to the office of a judge; and it may be that the incumbents are regarded as imbued with an aura, similar to that of a “priestly caste”, so great are the social expectations and obligations that bear on that responsible position together with the role and functions related to it. In the circumstances, it is not unreasonable to prop
ose that suspension of a judge engenders disgrace and dishonour of him; and, even if eventually he should be cleared of the allegation made against him, the social stigma caused by the suspension is never wholly eradicated.”

The Mischief which this Bill seeks to suppress

In my humble view therefore, the next question which must necessarily be addressed is whether the failure by judges to give decisions or to give decisions in a timely manner and reasons therefor, is a problem of such gravity that would warrant a penetration of their security of tenure and ultimately precipitate their removal from office. This brings me to the issue of the mischief which this Bill seeks to suppress.

It is a fact of public notoriety that the cancer of delay has infected the legal system in Guyana for a very long time now. As a result, the system has become moribund. Unless this situation is arrested, the system will ultimately grind to a halt.

If a survey is conducted in this country now of persons who have had the most fleeting engagement with our courts and these persons are asked to identify a singular problem which affects the system, I am confident that over ninety five percent (95%) will speak to its slowness.

Currently, the system is burdened with a backlog of cases running into thousands. Only recently, a Report was laid before this House by the Honourable Attorney General in this regard. Cases that were filed as long back as 1993, are still awaiting a trial date.

What are the consequences of this delay? Witnesses’ memory fades and some even die in the process; litigants die waiting for their cases to be heard and determined; some migrate; convicted prisoners languish in prison for years waiting for their appeals to be heard; lawyers die in the process; billions of dollars in cash and properties are tied up in litigation; economic ventures perish; investors become apprehensive and investments dry up and economic progress is stymied; people become frustrated and they take the law into their own hands with dire consequences.

There is always one certain result; a denial of justice. This travesty has obtained for too long.

The causes for this delay, and ultimate denial of justice, are various and varied. This Bill addresses only one of them – the failure of judges to write their decisions or give reasons therefor in a timely manner upon the conclusion of a case.

The fact that this is one of the causes for the delay is beyond dispute. I know of one sitting Judge who has a few hundred decisions outstanding – an absolutely horrendous state of affairs.

Indeed, apart from the two (2) recent appointees, I know of no Judge who does not have a number of outstanding judgments to write in relation to cases where the trials or hearings have already been completed. To this appalling state of affair, there is no legal remedy.

This Bill, for the first time, provides one.

It is important to juxtapose this situation against the position of the litigant who, by various pieces of legislation, but more especially the Rules of Court, must comply with a time table by which his litigation must be conducted.

For example, the Limitation Act, provides a time frame within which certain types of case must be brought. Similarly, in criminal law, certain type of offences must be charged within a six-month period.

The various Rules of Court provide time frame for the filing of pleadings and appeals. When these time frames are not met, the consequences can be fatal to the litigation.

In both criminal and civil law, if cases are not prosecuted in a timely fashion, they can be dismissed for want of prosecution. There is no corresponding obligation or responsibility placed upon the judges.

In this entire equation, we cannot overlook the State’s Constitutional guarantee to the citizens of this country of a fair trial within a reasonable time as a fundamental right and freedom.

How can the State deliver upon this guarantee and how can the citizens cash in on this promissory note when the institution that is charged with the responsibility of trying the case has no real and compelling obligation to do so within a reasonable time? This Bill seeks to enhance this Constitutional guarantee.

It is important that I emphasize that the question of delay is neither peculiar nor unique to Guyana. Indeed, it pervades every territory where the English legal system has been supplanted.

In dealing with this issue from a Caribbean perspective, Professor Rose-Marie Bell Antoine in her book, Commonwealth Caribbean Law and Legal Systems, Second Edition (2008), at page 304 offers this analysis:

“The problem of delay in the administration of justice in the Commonwealth Caribbean has been identified as the single most consistent complaint in every legal system in the region. This issue has not been merely documented, but judicially noticed. Indeed, it was such a problem that spurned the line of cases on cruel and inhuman punishment as a result of undue delay on death row.”

Indeed, the judiciary itself has on many occasions expressed criticisms and frustration at its own delay. In fact, the judiciary has made the fundamental connection between its efficient functioning and economic development in a country. A connection and correlation that is often lost upon judges and even politicians. In Citco Banking Corporation -v- Pussers Limited (2007) Vol. 69 WIR 308, an Appeal to the Privy Council, emanating from the British Virgin Islands, the Privy Council made the following scathing remarks of the trial judge at page 317:

“Benjamin J. heard evidence and arguments over five days towards the end of June, 1998, and reserved his judgment, saying that he would give it before the end of July. In fact, he gave it on the 7th April, 2003, nearly five years later. The judgment as delivered offers the parties no explanation for the delay and their Lordships understand that the Judge is no longer serving in the British Virgin Islands but their Lordships feel bound to observe that such delays are completely unacceptable. Besides being a violation of the constitutional rights of the parties to a determination of their dispute within reasonable time, they are likely to be detrimental to the interests of the British Virgin Islands as a financial centre which can offer investors efficient and impartial justice.”

Similarly, in the case of Winston Campbell -v- The Attorney General, a judgment delivered by the Caribbean Court of Justice just the 3rd day of April, 2009, in relation to an appeal out of Barbados, the Caribbean Court of Justice stated as follows:

“It is unfortunate that we cannot overlook that Waterman J took three years to deliver his judgment, while the Court of Appeal took almost four and a half years, despite section 18(8) of the Constitution conferring upon litigants the right for their case to “be given a fair hearing within a reasonable time”, which necessarily requires that the judgment in the case be given within a reasonable time. As de la Bastide P stated in the first appeal we heard from Barbados (where there had been a delay of four years ten months in the Court of Appeal giving its reserved judgment), such delays “deny parties the access to justice to which they are entitled and undermine confidence in the administration of justice.

Subsequently in Reid v Reid (where there had been a similar delay of four years ten months) Saunders J, on behalf of the CCJ stated, “In our view, no judgment should be outstanding for more than six months and, unless a case is one of unusual difficulty or complexity, judgment should normally be delivered within three months.” Such efficient justice is needed not just for the furtherance of the best interests of employers and employees but also for the proper protection and encouragement of investors and entrepreneurs whose activities are crucia
l to the welfare of Barbados and its people. Happily, the Chief Justice has taken steps to improve efficiency in the timely delivery of judgments.”

The sentiments expressed in these judgments are symptomatic of what obtains throughout the Caribbean. Yet, I was unable to find in my research, any Caribbean territory with a piece of Legislation similar to this Bill. I am proud to say that we will be the first in the Caribbean to enact such a legislation.

In fact, the only country that I have found with a similar legislation is the Union of India; whereby the Code of Civil Procedure of 2002, provides that if a judgment is not pronounced at the conclusion of the hearing of a case, it should ordinarily be delivered within thirty (30) days thereof and if it is not practicable to do so due to “exceptional and extraordinary circumstances”, it may be pronounced within sixty (60) days. The rationale for the introduction of this legislation in India is almost identical to ours. Indeed, in the case of Anil Rai -v- State of Bihar, the Supreme Court of India expressed it so elegantly that I feel compelled to quote:

“As the pronouncement of the judgment is part of the justice dispensation system, it has to be without delay. In a country like ours where people consider the judges only second to god, efforts must be made to strengthen that belief to the common man. Delay in disposal of cases facilitates the people to raise eyebrows, sometimes genuinely which, if not checked, may shake the confidence of the people in the judicial system. A time has come when the judiciary itself has to assert for preserving its stature, respect and regards for the attainment of the rule of law. For the fault of a few, the glorious and glittering name of the judiciary cannot be made ugly. It is the policy and purpose of the law, to have speedy justice for which efforts are required to be made to come up to the expectation of society of ensuring speedy, untainted and unpolluted justice.”

Having said all of that, is the problem of delay which confronts our legal system not serious enough to occasion the enactment of a law of this type? In my humble view, it certainly is.  It is not my intention to take this House through the Bill, clause, by clause as I think it is quite a straight forward Bill and its provisions are quite simple and unambiguous.
I much prefer to deal with the concepts which the Bill contains.

Another important feature of this Bill is that it promotes accountability. Often times we on this side in the House are criticized and I must say, unjustifiably so, for not promoting sufficient accountability in Government. The judiciary is an arm of Government and this Bill makes the judiciary more accountable, transparent and responsible in its functioning.

In fact, not only would the judiciary, by virtue of this Bill, be more accountable, transparent and responsible to its functional head, the Chancellor, but also to the litigants and more importantly to the Parliament, and by extension the people of this country. Clause 11 requires an Annual Report to be presented to this House in respect of the obligations which this Bill imposes.

I believe that it would be unfair of me if I do not acknowledge how onerous the obligations which this Bill imposes will be on our judges. Concomitantly, I feel compelled to emphasize that no efforts should be spared by the relevant agencies in ensuring that our judges are provided with the requisite resources, both human and non human, to discharge these obligations. In respect of each Judge, computers with internet access, a specialized typist and a duly qualified research assistant are some examples of what I consider to be requisite.

Additionally, the time is long over due for the High Court and the Court of Appeal Acts to be amended to increase the complement of judges who sit in those Courts. Currently the High Court full complement is twelve (12) judges and the Court of Appeal is five (5). In Trinidad and Tobago, there are currently twenty-eight (28) High Court judges and eight (8) Court of Appeal judges.

Also, the time is long overdue for the introduction of audio-recording devices to record proceedings in the Courts so as to obviate the need for judges and Magistrates to write evidence and submissions in long hand.
This will bring great dispatch to the rate at which cases are concluded. At the end of the day, we including the judges, must never lose sight of the fact that we are all engaged in a singular purpose, that is, the delivery of justice to our people in a fair, responsible and speedy manner.

I sincerely hope that this Bill is not regarded by any to be an attack, an indictment or a criticism of our judiciary. I sincerely hope that this Bill is not construed by any quarter to be an attempt to undermine the impartiality of the judiciary. This Government remains absolutely committed to the maintenance and preservation of the independence of the judiciary.

This Bill, as I understand it, is simply to make our judges more responsible in the performance of their functions. The office of a Judge will continue to enjoy reverence, veneration, probity and prestige. This Bill is not intended to subtract from those virtues, but rather to enhance them by increasing and promoting more public confidence in the judiciary. I wish to close with the words of the renowned American lawyer and distinguished professor at Harvard University, Mr. Alan M. Dershowitz, in his book, The Best Defence, when he stated:

“Beneath the robes of many judges I have seen corruption, incompetence, bias, laziness, meanness of spirit and plain ordinary stupidity. I have also seen dedication, honesty, hard work and kindness – but that is the least to which we are entitled from our judges.”

In the circumstances, I wish to lend my humble support to this Bill.

QUOTE: It is a fact of public notoriety that the cancer of delay has infected the legal system in Guyana for a very long time now. As a result, the system has become moribund. Unless this situation is arrested, the system will ultimately grind to a halt.