In the January, 2011 edition of the Guyana Bar Review, I wrote in respect of efforts by the political executive to exercise control over the judiciary:
“In The Judiciary and Governance in the Caribbean, (2001), Professor Ryan quotes Miles Fitzpatrick, S.C. in an address given in 1988 that, ‘Manipulation of the bench does not have to take the more brutal forms of dismissal or exile. Most judges, like most professional people, are very concerned about their careers.’ As long as the executive controls whether an acting judge is to be confirmed in his position, or whether a confirmed judge will be promoted, or as long as a judge’s tax exemption entitlement can be delayed or withheld, the independence of the judiciary will be compromised.”
The Guyana Bar Association notes your article published on 1st March, 2012 that the new President and the new Leader of the Opposition are meeting to discuss inter alia the appointments of individuals to the substantive positions of Chancellor of the Judiciary and Chief Justice. Discussions of these appointments had taken place between the previous President and previous Leader of the Opposition some years ago, without any agreement being reached, with the result that Justices Carl Singh OR and Ian Chang CCH have continued to act in those positions without confirmation.
The political game now begins afresh. Any politician worth his salt is concerned about his political influence vis a vis that of his political opponent. The public perception must be that political motivations will inform the discussion of our leaders, possibly at the expense of other considerations such as the competence of the two judges, their professional and moral personal ethics, or their independence from external influence. Any suggestion by one faction, any endorsement of a candidate is likely by virtue of the fact of the endorsement, without more, to make that candidate the subject of suspicion by the other faction. “The executive desires control and will use its power… to maintain an acquiescent and passive judiciary.” It is therefore not surprising that both our Chancellor and Chief Justice have held acting positions, with the resulting loss of security of tenure, for approximately eight years while the politicians have wrangled.
It therefore falls to the Bar Association to make a statement. Justices Carl Singh and Ian Chang have acted as Chancellor and Chief Justice respectively with merit during their tenure. Both are good legal minds (albeit overworked and under pressure) with years of experience. If either had been unsuitable, the authorities would have been remiss not to have removed them long ago. To suggest not confirming either of them or replacing either of them would be insulting in light of their service; indeed, the failure to have already confirmed them long ago is indefensible. It is time to bring a close to their uncertainty and to confirm both the acting Chancellor and the acting Chief Justice in their respective offices for the benefit of the administration of justice and the independence of the judiciary. Any failure to do so, or further delay in doing so, will compound the error of our leaders’ predecessors, to the harm of the legal system.
Guyana Bar Association