Ongoing lack of substantive Chancellor, CJ ‘significant stain’ on rule of law

-incoming CCJ head

Adrian Saunders

Calling Guyana’s failure to make substantive judicial appointments a “significant stain” on the rule of law, President-Designate of the Caribbean Court of Justice (CCJ) Justice Adrian Saunders said on Thursday that the situation is inexcusable but stopped short of offering a remedy.

“The ability of the judiciary to resolve matters must be a critical dimension of the rule of law. In this regard, I have to say a significant stain on the rule of law so far is Guyana’s inability over the last 13 years to appoint a substantive office holder to the position of Chancellor…There really can be no excuse for that kind of situation,” he said on Thursday while presenting on `The rule of law and the Caribbean Court of Justice’ at the Fourth Conversation on Law and Society, hosted by the University of Guyana at Duke Lodge. 

Justice Saunders who takes over the helm of the Trinidad-based final court on July 4th, was the main speaker at the forum. The audience included acting Chancellor of the Judiciary, Justice Yonette Cummings-Edwards and acting Chief Justice Roxane George, who were appointed over a year ago by President David Granger following a meeting with Opposition Leader Bharrat Jagdeo.

The Vincentian judge, who currently sits on the CCJ, stressed that given the fact that outgoing CCJ President Sir Dennis Bryon made mention of the issue several months ago while addressing members of the local bar, it would be “irresponsible of me if I did not also call attention to that issue.”

While delivering the keynote address at the 37th Annual Bar Association Dinner held last November, Sir Dennis had said it was disappointing that no substantive Chancellor had been appointed after Justice Desiree Bernard’s departure and noted that having both offices being led by judges acting in the respective capacities was “a most unfortunate state of affairs.”

He had bemoaned the inability of successive presidents and opposition leaders to agree on appointing a substantive Chancellor of the Judiciary, while warning that prolonged acting appointments pose a genuine “risk” to the promise to citizens of an independent and impartial judiciary.

Both the President and the Opposition Leader have to agree on the appointments.

Granger’s choice for Chancellor of the Judiciary was Guyana-born, Belizean Chief Justice, Kenneth Benjamin, while Justice Cummings-Edwards was his nominee for Chief Justice but these nominations were not accepted by Jagdeo. Since then, the two have traded blame over who must take responsibility for the stalled process. The President has since said that he plans to have a meeting with Jagdeo “very soon” to discuss this and other pressing issues.

Barrier

Justice Saunders used the occasion to stress that despite Guyana’s wealth, it has been unable to satisfactorily apply the rule of law.

“Guyana is beautiful and blessed with enormous riches and a wonderful and creative people. The only thing that stands between you and prosperity is the consistent and thorough application of the rule of law. If, like any other country in the Caribbean, you can get this right, but particularly Guyana because you have these enormous riches, if you can get that right, then this country will be a shining light for all of CARICOM,” he said.

Earlier in his address, he said that protection from the rule of law is more than being kept from harm committed by an arm of the state, as this concept also extends to a positive duty on the part of the state to take active steps to protect citizens. He said that the rule of law is explained at length in Caribbean constitutions in a variety of ways, particularly in the preambles.

Stressing that the law must not be uncertain, he pointed out that if the law is vague, it will lack effectiveness. Procedural fairness is another principle associated with the rule of law, he added.

“…the rule of law has become an independent constitutional value which is at a very high level. It is almost in the same stratosphere as the separation of powers and we know that courts have not been shy to give relief to litigants on the basis that separation of powers has been breached,” Justice Saunders said before adding that when he looks around the Caribbean he notices a number of disturbing features that threaten the rule of law.

“One of these is the criminal justice system in the Caribbean. I see instances where there is an insufficiency in the investigation of crimes so that persons …are acquitted because there really is not a lot of forensic proof of the commission of the crime. I see instances where persons are on pretrial detention for inordinate lengths of time,” he said.

With regards to the latter point, he said that in Guyana it is not so bad. This comment was met with groans of disagreement and he later explained that statistics from several years ago regarding the number of prisoners awaiting trial stood at 35% while in Trinidad for example the figure stood at 60%, which is “outrageously high.” He then stressed that high levels of pretrial detention represents serious human rights abuse and “this is something that we [the region] need to do something about.”

Justice Saunders noted that in the criminal justice system there is also an absence of effective criminal case management, an insufficient set of mechanisms for addressing the peculiar needs of women, young girls and vulnerable persons.

“We have a criminal justice system in the region that is broke in a number of ways and tackling it is difficult because it requires the coordination of several different system, each with its own priorities. Prisons, the prosecutorial authorities, the police, the executive, the Bar Associa-tion…”, he said, before reiterating that in order for the justice system to be improved it requires all of these stakeholders “to sit, be on the same page and agree to a raft of policy proposals that would carry the system forward.”

Speaker of the National Assembly Dr. Barton Scotland, several Senior Counsel, judges, magistrates, professors, law students and senior police ranks were also in attendance at the forum.

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