Law can fix time limit for judges to give decisions
July 27, 2003
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There have been many cases where judges have failed to give their decision for months and even years after the hearing of the case before them has been completed. In other cases, they have given oral decisions but when an appeal has been filed have failed to produce their written decision which is an essential part of the appeal record.
Stabroek News recently sought the views of two prominent Guyanese attorneys, Khemraj Ramjattan the current President of the Guyana Bar Association and Brynmor Pollard S.C. regarding this “judicial dilemma”, its likely source/s and solutions.
“There is a feeling that judges are sometimes hesitant to write decisions because they are uncertain in their minds as to the correctness of their decision/s. There is a lack of self-confidence and assertiveness,” Ramjattan said.
It is Ramjattan’s belief also that, in some cases, the contending lawyers do not offer the quality or quantity of submissions which can assist the presiding judge in arriving at appropriate decisions or rulings. Further, he feels, judges do not place adequate emphasis on the `art of writing’ thus negatively affecting the `clarity’ of their decisions.
“It is an attribute of a good judge to also be a good writer. The contents of the ruling should be written in a manner that is precise, succinct and very clear,” Ramjattan related.
He said because judges often have to deal with massive and complex particulars, they may understandably experience difficulty sifting through them and determining the relevant from the irrevelant details.
“Although judgements cannot be tailor-made, there should be certain precedents set out to guide the judges (by senior members of the judicial system) in making their decisions,” Ramjattan said.
He added that judges should have a personal desire “to enter the scholarship of the law rather than be mere note-takers of the facts provided. Moreover, there should be a personal, continuous quest for knowledge through reading and other means of research.”
In his analysis of the situation, Pollard first pointed out that this problem has existed for a long time and is not unique to Guyana.
“This is not a phenomenon which is peculiar to Guyana...(it) exists locally, in the Caribbean and the Commonwealth, and has engaged the attention of Caricom Ministers of Legal Affairs since the early 1990s,” Pollard stated.
Pollard said that although this problem has lasted for several years, “it still seems to defy solution. There are some members of the legal profession who take the view that delays are endemic in the system, (and therefore) cannot be easily eradicated.”
Since Guyana’s population is relatively small with just about 750,000 people, the suggestion of a need for more judges may not necessarily be the answer, Pollard opined, noting there are approximately 11 serving judges, at present.
According to Pollard, the problem was also addressed at the recent constitution revision exercise where its enormity was acknowledged through the revision of Article 197 (3) of the Guyana Constitution which originally read: “A judge may be removed from office only for inability to perform the functions of his office (whether arising from infirmity of mind, body or any other cause) or for misbehaviour, and shall not be removed except in accordance with the provisions of this article.” Article 197 (3) has been amended to read: “A judge may be removed from office only for his 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 within such time as may be specified by Parliament, and shall not be removed except in accordance with the provisions of this article.”
“In Nigeria, a judge must deliver his/her decision/s within 60 days of the concluded hearing. The law, (in that jurisdiction), provides for (this),” Pollard revealed.
And what happens if the judge fails to deliver judgement within the prescribed time? The law in Nigeria dictates that if a judge is guilty of consistently failing to deliver his/her decisions within the specified time, disciplinary action may be taken against him/her. A similar law could be passed, too, here to give effect to the spirit of the constitutional amendment. Pollard said there is a case in England where a judge was asked to step down on these grounds and complied.
The structure of the local judiciary places a restriction on the kind of discipline, that is, suspension or removal from office, which can be imposed on the offending judge. In Guyana and the Caribbean, judges are not on an incremental scale, “so increments cannot be withheld as punishment. This is the case in some jurisdictions, and it is sometimes seen as an erosion of judicial independence,” Pollard disclosed. In the United States, for instance, judges are assigned qualified clerks who assist them in their (preparatory) research for making decisions, thus expediting the process. The introduction of a similar system in Guyana would mean an increase in the budgetary allocations to the courts.
The senior counsel lauded the Carter Center, Guyana for moving to implement the Alternative Dispute Resolution (ADR) system, locally. The ADR system includes conciliation, mediation and arbitration, Pollard explained, and is a necessary `active’ reform.
In some jurisdictions, preliminary inquiries (PIs) have been abolished and the cases go straight to the High Court but “if this occurs in Guyana, the pressure on the Supreme Court will increase and other difficulties may arise.”
In September 1992, an inaugural meeting of the Regional Task Force on Delays in the Administration of Justice, with particular reference to criminal law, was held in Kingston, Jamaica.
At this conference, it was concluded that “...delays in the Administration of Justice” are currently being viewed (by prominent Caribbean individuals) as “presenting a serious threat to the quality of Justice available to the peoples of our Region.”