Judges must clamp down on contempt
-Chancellor Bernard tells law conference
May 11, 2003
Chancellor of the Judiciary Desiree Bernard has warned that unless the courts use their considerable powers to punish persons for contempt the high ideals of the legal profession could be completely eroded.
Chancellor Bernard was speaking at the opening session of the Guyana Bar Association Annual Law Conference at the Tower Hotel yesterday. She also urged the members of the local Bar to adopt a code of conduct to unify conflicting views on what constituted proper conduct. She recommended that the members of the Bar and Bench study the law of contempt of court so that the parameters within which they operated could be defined and so that overstepping of the boundaries could be dealt with accordingly.
The audience included retired Chancellors Kenneth George and Aubrey Bishop, Chief Justice Carl Singh, Justices of Appeal Claudette Singh, Nandram Kissoon and Ian Chang, Justices Winston Moore, Claudette LaBennett, Yonnette Cummings, and Dawn Gregory Barnes, Senior Counsel Bryn Pollard, Rex McKay, Peter Britton, Clarence Hughes, and legal luminaries such as Dr Fenton Ramsahoye and Odell Adams.
In her address the Chancellor drew attention to the decline in respect for the courts as a result of the constant friction between the Bench and the Bar "which will quite often attract the attention of the media, particularly the electronic media."
She said that judges were now being sued for the performance of their duties. "One wonders how and why we have arrived at this state? Whatever the reason, we must arrest it before all respect for the high ideals of our profession are completely eroded."
She commended David Pannick's book Advocates which describes the mechanisms available to the Bench and Bar to guard the maintenance of high professional standards and the application of disciplinary sanctions for infractions of the code of conduct.
Justice Bernard also asserted that while in former times it would have been unthinkable to institute a code of conduct for the Bench and Bar, in the present-day environment it was now essential, noting that all the Commonwealth judiciaries now had such a code. This she said was "an indication the Bench is prepared to regulate its own behaviour and bear public scrutiny of its action." She also observed that, "we are in an entirely different environment, with different perspectives of what constitutes proper behaviour."
"Those of us steeped and nurtured in the age-old traditions of the Bar are on a different wavelength from others who may regard these traditions as old fashioned and out of step with modern ideas of morality. In order to unify these conflicting views it is necessary for an agreed code of conduct."
Reviewing the state of the judiciary, Justice Bernard referred to the depletion in the numbers of judges on the Bench, now numbering seven - last year it was eleven - while the workload continued to rise. "Constitutional motions are filed with increasing regularity and are only surpassed by the prerogative writs of certiorari and mandamus to ensure review of the actions of administrative functionaries."
She said too that the magistracy was under pressure with fewer and fewer of them being called on to deal with the increased volume of cases involving narcotics.
She praised the assistance being given in providing training opportunities for judges by the Lord Chancellor's Department of the United Kingdom; the assistance being given by the local Carter Center Office in promoting the introduction of Alternative Dispute Resolution; and by the Bar Association in reducing the number of cases which clog the judicial system by helping to weed out old matters which have either been deserted or abandoned. She also thanked the British government, which had provided the Law Library with legal texts on a variety of subjects as well as to the Berbice High Court, which also benefited from contributions by lawyers resident and practising in the United Kingdom.
President of the Bar Association, Nigel Hughes in his opening remarks noted with dismay the acceptance that the judicial system and the legal profession should operate in a state of perpetual crisis "where the absence of justice and rule of law rage violently on the backburner without exciting much concern within our profession."
He contended that so often had the Chancellor sounded the alarm bells about the crisis in the administration of justice that "like the guests on the upper deck of the Titanic, in the final hours we have decided to enjoy the final moments."
Hughes said that today it "is easier to picket than pursue legal avenues of redress available to any litigant" and as a result an urgent examination was needed of the philosophical and jurisprudential basis of the country's legal system. He said that the priority attached to such an exercise would either "remove any illusions which we have of the underlying importance of the rule of law or we pursue it with such vigour that we can deliver to the end users of the justice system a superior legal product."
Yesterday morning's session also heard presentations on the "Independence of The DPP" by Trinidad and Tobago attorney, Douglas Mendes and the "Progress of Constitutional Law from Jaundoo to Gairy" by former Grenada Attorney General and Law Lecturer at the University of the West Indies, Dr Francis Alexis. Both presentations generated lively discussions, which benefited from contributions by Professor James, Roxanne George, who performs the functions of the DPP in Guyana, McKay, Hughes and Dr Fenton Ramsahoye who argued a number of the cases cited by Dr Alexis before the Privy Council.
In his presentation Mendes reviewed the constitutional arrangements for the functions of the DPP in the constitutions of Guyana, Trinidad and Tobago, Barbados and Jamaica and urged the independent exercise of the functions of the DPP.
George noted the lack of capacity to launch investigations independent of the police and bemoaned the fact that the police normally filed charges without reference to the DPP Chambers even where police legal advisers were appointed. But Justice Chang, who acted as DPP for several years before opting for private practice and eventual appointment to the Court of Appeal, pointed out that there were statutory provisions requiring that the DPP Chambers advise the police.
Among the issues explored was whether or not the DPP should be appointed on contract and the effect this sort of appointment would have on his conduct nearing the expiration of his contract if he was desirous of having it renewed. However, it was the general feeling that contract employment would be acceptable if the appointment was made by an independent body which was also responsible for signing the contract and if the process for termination involved a hearing by a tribunal.
Dr Alexis' presentation explored the expansion of the remedies available to the citizen whose rights have been breached by the administrative actions of a government official. He said that the expansion was possible because of the departure from the conservatism on the Privy Council to the adoption of a more progressive interpretation of the law as regards the rights of an individual as enshrined in a written constitution.
He said the next hurdle that had to be overcome was the provision, which put a time constraint on bringing action against the state which is not similarly inhibited in pursuing criminal proceedings against an individual.
Dr Alexis and the other contributors also noted the recent amendment to the Guyana Constitution, which allowed an aggrieved citizen to move the court by a constitutional motion even though there existed adequate alternative remedies. However, McKay argued that this did not apply to rights not covered by articles 138-153. He said that constitutional motions now take several years to be heard when the issues required speedy hearings. Justice Bernard conceded that this was a systemic problem as there was only one judge to hear constitutional motions. She hoped that once the Judicial Service Commission was appointed that more judges would be appointed which would allow for at least two judges being assigned to hear constitutional motions.
The conference continues today with presentations by Alison Demas on the "Legal Aspects of e-commerce," Teni Housty on "Domain Name Registration: Going, going, gone," Vidyaratha Kissoon on the "IT Landscape in Guyana" and Tim Greene of the United Kingdom on "Proposed IT legislation and the Government's Plans for the Industry."
Dr Ramsahoye in his remarks on the subject urged the judges to do their duty regardless of whether they stepped on the toes of this or that political functionary.