THE STATE OF THE LEGAL PROFESSION: THE WAY FORWARD
By
CHIEF JUSTICE DESIREE BERNARD, C.C.H.
The legal
profession historically has been the most maligned of all professions, and has
been the butt of much criticism and witticism many of them negative, such as, “
Some lawyers are just the opposite of laundrymen; they lose your suit and then
take you to the cleaners”, or “ A lawyer is a glib-tongued fellow who defends
your property from an enemy in order to save it for himself”.
Be that as
it may, the legal profession has endured for centuries ensuring that the rights
of persons are protected and enforced, and guarding against excesses committed
by or against other individuals or by or against the State.
We in the
countries of the Caribbean being former colonies inherited the English legal
system from the mother country Great Britain.
The common law of England became the common law of the colonies, and the
structure of the court system reflected in large measure the English court
system without regard to relevance or suitability to local conditions. In like manner we inherited all of the
traditions of the English Bar particularly court dress – wigs (full-bottoms and
all), gowns, bibs, three-piece suits of ancient vintage – and endured the
discomfort of such attire in sweltering heat with pride and dignity reflective
of a true English barrister. In this
regard time has brought about change in some of the territories of the
Caribbean particularly here in Guyana.
Wigs and bibs were abolished in 1970 when we achieved Republican status,
and appeals to the Privy Council went the same way. I shall comment on this in greater detail later.
COURT PROCEDURE AND NEW TECHNOLOGY
Although
time has eroded some of the time-honoured English traditions we in this part of
the world have still basically retained the conservatism and in some instances
rigidity of the English court procedure of the recent past. I say recent past because within the last
two years we have witnessed a complete overhaul of the rules of civil procedure
in the United Kingdom. The objective is
to make access to justice simple and uncomplicated for the average citizen unfettered
by rigid rules the adherence to which sometimes works injustice to a litigant
who is often hard-pressed to understand why he lost his case on a procedural
point when all of the evidence dictated that he should have won.
We,
however, still cling slavishly to the old rules which were lifted verbatim from
the English rules nearly fifty years ago and which in some instances are
anachronistic and archaic in a world of the 21st century. The existing rules of court which govern our
civil procedure were adopted in 1955 and have not been revised over the last
forty-five years. A body of precedent
has been built up over the years around these rules, and this is
commendable. Nevertheless the time has
come for us to think seriously of revising and amending these rules as well as
other relevant legislative enactments to provide for modern-day situations,
e.g. the reception of photo copies, facsimiles, computer printouts, and
whenever it comes to Guyana, DNA evidence.
I note that
one of the issues targeted for discussion at this Conference is improvement to
the Evidence Act and the use of technology in the recording of court proceedings. This is in keeping with what I just referred
to. Members of the public are often
dismayed to learn that a judge and magistrate still record all evidence in
manuscript which is laborious and time-consuming. Our court records too are still handwritten and held together by
paper clips which leads inevitably to pleadings being misplaced or
misfiled. It is time that the Supreme
Court Registry be computerised so that records of cases and their status and
location can be readily ascertained.
Every judge should have at his/her disposal a computer terminal to
assist in legal research and to be kept informed about recent developments in
all aspects of the law as well as facilitate the speedy preparation of rulings
and decisions. We need to move swiftly from
the 20th into the 21st century as we are lagging far
behind our counterparts in the Caribbean not to mention the rest of the western
world.
LAW REPORTING
Collaterally,
action must be directed at bringing our law reports from way back in the last
quarter of the last century into the new century. It is nothing short of disgraceful that the last published report
is 1975, and for this we must be grateful to former Chancellor Bishop and his
team of young editors together with financial assistance from the Lions and
Rotary Clubs. This is by no means an
easy task which requires commitment, dedication and finance. In spite of the enormity of the task efforts
must be made and resources identified to continue the exercise. The legal profession must be responsible for
publishing reports of cases decided in our courts. We owe it not only to ourselves but also to students and young
practitioners who are entering the profession in large numbers every year, and
who need guidance and every assistance if they are to make a contribution to
the development of our own jurisprudence.
This is a challenge which I now throw out to your association, and which
I hope will be taken up.
INDEPENDENCE OF THE JUDICIARY
One of the
topics slated for discussion later this morning is “The Independence of the
Judiciary”. This is a phrase which has
been bandied about frequently, and lip service paid to it by judges and
governments everywhere. The acceptable
understanding of judicial independence is that a judge must be free from pressures,
real or perceived, in arriving at decisions made according to law regardless of
the identity of the litigants before him/her.
The learned judge must operate in an environment which conduces to the
dispensation of justice without fear or favour, affection or ill-will
consistent with the oath taken upon appointment.
LATIMER HOUSE GUIDELINES
Judicial
independence is fragile and can be easily destroyed or compromised. Therefore no effort must be spared to
preserve and cherish it. With this as
one of its primary objectives from 15th to 19th June,
1998 legal personnel drawn from and invited by the Commonwealth Parliamentary
Association, the Commonwealth Magistrates’ and Judges’ Association, the
Commonwealth Lawyers’ Association and the Commonwealth Legal Education
Association, met at Latimer House in the United Kingdom where they hammered out
and adopted what has come to be known as the Latimer House Guidelines. These Guidelines cover such topics as
Parliament and the Judiciary, Preserving Judicial Independence, Preserving the
Independence of Parliamentarians, Women in Parliament, Judicial and
Parliamentary Ethics and Accountability Mechanisms among others. I shall focus solely on the guidelines on
Preserving Judicial Independence as this is pertinent to the topic which you
will be discussing later this morning.
Under this
subject Judicial Autonomy. Funding and Training are discussed. The recommendations under Judicial Autonomy
include provisions for judicial appointments to be made on merit by a judicial
services commission, such appointments to be normally permanent; the judicial services commission should be
established by the Constitution or by statute with a majority of members drawn
from the senior judiciary; appointments
to all levels of the judiciary should have, as an objective, the achievement of
equality between women and men;
judicial vacancies should be advertised; recommendations for appointment should come from the commission.
In relation
to Funding the Guidelines recommend that sufficient funding be provided to
enable the judiciary to perform its functions to the highest standards as
appropriate salaries, supporting staff, resources and equipment are essential
to the proper functioning of the judiciary;
further, as a matter of principle, judicial salaries and benefits should
be set by an independent commission and should be maintained; also that the administration of monies
allocated to the judiciary should be under the control of the judiciary.
On the
issue of Training a culture of judicial education should be developed. Training should be organised, systematic and
ongoing and under the control of an adequately funded judicial body; also courses in judicial education should be
offered to practising lawyers as part of their ongoing professional development
training.
On the
issue of Training a culture of judicial education should be developed. Training should be organised, systematic and
ongoing and under the control of an adequately funded judicial body; also courses in judicial education should be
offered to practising lawyers as part of their ongoing professional development
training.
On Judicial
Ethics it is recommended that a Code of Ethics and Conduct be developed and
adopted by the judiciary as a means of ensuring the accountability of
judges. This accountability is dealt
with under two heads – discipline and public criticism. With regard to discipline it was felt that
in cases where a judge is at risk of removal, the judge must have the right to
be fully informed of the charges, to be represented at a hearing, to make a
full defence, and to be judged by an independent and impartial tribunal. Grounds for removal of a judge should be
limited to inability to perform judicial duties and serious misconduct; in all other matters the process should be
conducted by the chief judge of the courts.
A further recommendation which sparked some in-depth discussion at a
meeting of Chief Justices during the Commonwealth Magistrates’ and Judges’
Association Conference held in Edinburgh, Scotland, in September 2000, was that
disciplinary procedures should not include the public admonition of judges, and
any admonition should be delivered in private by the chief judge. There were views for and against private
admonition, and I daresay that there will continue to be on such a sensitive
issue.
This is
also tied to the question of public criticism of the judiciary. The Guidelines proffer that legitimate
public criticism of judicial performance is a means of ensuring accountability,
and that the criminal law and contempt proceedings are not appropriate
mechanisms for restricting legitimate criticism of the courts. We live in an age where accountability is
expected from persons who hold public office, and many feel that the judiciary
ought not to be exempted, and should not utilise the weapon of contempt of
court or threat of criminal prosecution for perceived disrespect of judicial
office. David Pannick, Q.C. of the
English Bar, in his book titled “Judges”
under the Chapter where he discussed Criticism, illustrated this change of
approach by the following story:
“In 1527 Serjeant Roo, a great lawyer of that time, more eager to show his wit than to be made a judge, composed a satire on the abuses of the law for which Lord Chancellor Wolsey was responsible. The satire was delivered in the presence of the King. Roo was summarily dispatched to prison. Nowadays a more tolerant attitude is taken towards critics of the judiciary. Nevertheless, lawyers and non-lawyers remain reluctant to emulate the critical approach of Serjeant Roo.”
David
Pannick also made the point that although criticising judges out of court may
now be less dangerous, contempt of court still has its penalties for those who
are unable to control their emotions in court.
However, this is not a lecture on contempt of court so I shall not
comment any further.
In relation
to Executive Accountability the Latimer House Guidelines make reference to the
process of judicial review and recommended that Commonwealth governments
endorse and implement the principles of judicial review enshrined in the Lusaka
Statement on Government under the Law.
Most countries in the Commonwealth are moving towards implementing
judicial review, and the Caribbean is no exception. This is discussed by Professor Albert Fiadjoe in his book
“Commonwealth Caribbean Public Law”, and we have the pleasure of having him
here with us today. I shall leave
further discussion on this topic in his capable hands when he addresses this
Conference later.
My final
comment on the Latimer House Guidelines is that they are just that –
Guidelines. They have not as yet been
adopted by the Heads of Government of the Commonwealth, and at the end of the
meeting at Latimer House it was decided that they should be forwarded to the
Commonwealth Secretariat for consideration by the Law Ministers and Heads of
Government. It was also decided that if
they were adopted an effective monitoring procedure should be devised, e.g. a
Standing Committee under which all Commonwealth jurisdictions accept an
obligation to report on their compliance with the Guidelines. The Guidelines were unanimously endorsed by
Chief Justices of the Commonwealth who attended the CMJA Conference in
September 2000 in Edinburgh, Scotland.
CARIBBEAN COURT OF JUSTICE
In relation to the Caribbean Court of Justice for the past twenty-five years an ongoing debate has taken place throughout the territories of the Caribbean about the desirability of establishing a final court of appeal within the Region. Of necessity hand in hand with this has been discussion on the wisdom of abolishing appeals to the Privy Council. On a personal note I have been involved in these debates and discussions with lawyers in the Region when I had the honour of being President of OCCBA (the Organisation of Commonwealth Caribbean Bar Associations). For this length of time we have argued, disagreed and debated the pros and cons of the establishment of a final court, and, sad to say, we are no closer to achieving this dream than we were twenty-five years ago. During these years several states in the Caribbean have achieved political independence from the Mother country with their own flags and national anthems, but still cling tenaciously to a court thousand of miles away which was established in colonial times to hear and determine appeals from the colonies of the British Empire. The territories of the Caribbean have taken their destinies into their own hands in every aspect of life except in the establishment of a final appellate court which many have doubts about preferring to retain a court far removed from the place where the tort or crime was committed. One is forced to pose the question – who better can judge whether a chattel house on blocks in the gap in St.Lawrence, Barbados, belongs to the tenant or the owner of the land, or whether a member of the Rastafarian religion in Kingston, Jamaica, or Kingstown, St. Vincent, ought to swear by Jah or the Emperor of Ethiopia rather than by Jesus Christ or the financial implications of a box hand in Guyana or sou-sou as it is called in Trinidad & Tobago?
The
fundamental problem in achieving a consensus on the establishment of a final
appellate court in the Region seems to me to be doubts that those responsible
for its establishment will be able to attract persons with the requisite
judicial competence and ability who can deliver judgments of quality of the
same standard of those delivered by members of the Board of the Judicial
Committee of the Privy Council. There
is also grave doubt about the independence of the court, and fears that
Governments of the Region will seek to compromise that independence or
influence the appointments of persons to the court.
In life
there are never absolute guarantees;
much, if not everything, rests on the integrity of the persons who hold
positions of eminence. It is a sad
indictment of our Region that it is felt that we cannot identify persons of
high moral character and legal scholarship to adjudicate and deliver justice to
our own people. It also indicates basic
distrust of our leaders maybe born of experience, but if we are to move forward
and control all aspects of our development we must make the first step. The task of establishing a Caribbean Court
of Justice is fraught with difficulties, not the least of which is
finance. However, ways and means must
be found to make the Court a reality.
Let us hope that it does not take another twenty-five years to achieve this
dream and sever the ties which still bind us to our colonial past. We are a collection of fledgling nations
with a very short history of independence.
Of necessity mistakes will be made, maybe very grave ones with
far-reaching effects, but it is only out of these mistakes that we can build a
strong court and develop a jurisprudence which is truly ours. It is an immense challenge, but the longest
journey begins with the first step, and we must be bold and courageous to take
that step.
HUMAN RIGHTS
My brief
comment on the subject of human rights is that all treaties and conventions
ratified and acceded to by our Government must be incorporated into our
Constitution and made justiciable in our courts. At present these human rights treaties depend on the passage of
domestic legislation consistent with the articles of the treaties for
enforceability, e.g. the Convention on the Elimination of All Forms of
Discrimination Against Women or the Covenant on Civil and Political Rights are
not enforceable in our courts per se even though the articles of these treaties
may be reflected in legislative provisions.
I note that
another burning issue to be discussed over the next two days is Police
Violence, and this falls under the topic of human rights. Within recent times there have been repeated
allegations of police brutality, and some way must be found to bridge the
ever-widening gap between the police and citizens with the police arraigned
against the very public which they are expected to protect. It is hoped that this stand-off will be
resolved by dialogue instead of confrontation.
GENDER BIAS IN THE LAW
Having
inherited the English common law and laws we also inherited all of its
discriminatory practices and gender stereotypes, e.g. the old concept of a wife
pledging her husband’s credit for necessaries or a husband maintaining an action
for interference with his consortium.
Although these concepts are no longer with us we now live in an age of
increasing violence against women. This
is of particular relevance at the moment as we observe United Nations Day
Against Violence Against Women. I make
mention of this in the context of women who are frequently charged with murder
of their male partners following prolonged physical abuse which cannot be
raised as a defence at their trial. A
woman in this situation can only raise the usual defence of self-defence if it
arises and she can satisfy a court that she did act in self-defence. Women throughout the world have raised their
voices against this denial of justice which has resulted in some countries
admitting evidence of what is called “battered woman’s syndrome”.
I am
mindful of the fact that this is not a gathering which is exclusively female,
and I am not here to advocate the rights of women. I am sure that you will hear much more of this topic in the
presentation of Ms. Tracy Robinson, an attorney from Jamaica. Nevertheless cognisant of the fact that this
is not a profession exclusively for men it behoves us all to address the
scourge of violence in our midst particularly directed at women, and find solutions
for the myriad problems which confront us as a result of it.
CONCLUSION
I wish to congratulate the Guyana Bar Association for organising this Conference which is timely and absolutely necessary particularly for our young attorneys. The wide-ranging agenda is impressive and provides an opportunity to discuss and debate issues of concern to both Bench and Bar as well as the public at large. I wish you a very stimulating and productive Conference, and I am sure that the deliberations and resulting conclusions emanating therefrom will enure to the benefit of all who are involved in the administration of justice in Guyana. The theme of the Conference indicates the forward thrust of your Association, and the commitment to confront new challenges as we enter a new century.
I shall end
as I began with a touch of humour:
“Two attorneys were having a conference trying to negotiate a settlement in a case.
After getting nowhere one said to the other, “Look, let us
be honest with each other”. “Okay, you
first”, replied the other.
And that was the end of the discussion.”
And this also is the end of my address. Best wishes for a successful Conference.
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