Appeals Court in hiatus as procrastination continues – Nandlall

JSC recommendations

The last sitting of the Court of Appeal was on February 27, 2017. On that occasion, Justices Carl Singh, Yonette Cummings-Edwards and Brassington Reynolds upheld the decision of former Chief Justice Ian Chang that cross-dressing be allowed once not done for “improper purposes.”

Since then, Guyana’s Court of Appeal continues to languish as it does not have its full complement of Judges. And according to former Attorney General Anil Nandlall, the non-appointment of these Judges has created a situation where citizens have no recourse to appeal High Court decisions.

During a recent press conference, Nandlall stressed that the Appeals Court is a fundamental link in the judiciary. Expounding on what effect the situation has had, he called the impact on the justice system a devastating one.

“This non appointment of Judges continues to cause the Court of Appeal of our country to be in a state of hiatus. Never before, in the history of the establishment of that court, has there been no sitting for such a protracted period,” he said.

“The impact on the justice system is devastating. No appeal coming from the high court can be heard by the Court of Appeal and no appeal can go on to the (Caribbean Court of Justice). Because that is the conduit through which the appeals go.”

Among the people Nandlall explained would be affected were persons who were convicted of an indictable offence in the court or who had been denied bail in the High Court.

“No one can have their appeal heard and determined. No person who has been denied bail in the High Court and may wish to make an application for bail can do so.”

“So you have a fundamental link in the hierarchical structure of the Judiciary dormant and non-functioning. And that is a serious concern of us. We call on those responsible for the administration of justice to do that which is necessary quickly and rectify this unfortunate gap,” Nandlall said.

Back in February 2016, the JSC unanimously recommended that High Court Judges, Justices Rishi Persaud and Dawn Gregory, be appointed to the Court of Appeal and Attorneys-at-Law Sandil Kissoon and Damone Younge be appointed Puisne Judges.

Last year, the Commission had recommended the appointment of two Judges to the Appeal Court and two lawyers as Puisne judges. The nominees for the Appeals court were Justices Rishi Persaud and Dawn Gregory, while the nominees for Puisne Judges were Attorneys-at-Law Sandil Kissoon and Damone Younge.

These appointments are yet to be effected, though there are reports that the process has been started by the Commission to compile a new list of candidates. In fact, President David Granger has admitted to withholding his approval based on information received and as such he said he sought further advice from the present Chancellor, Yonette Cummings-Edwards.

“I withheld approval because I sent the recommendations to the present Chancellor who has agreed to look at them and resubmit the list to me,” Granger had said when asked.

Article 128(1) of the Constitution provides that Judges, other than the Chancellor and Chief Justice, are appointed by the President “who shall act in accordance with the advice of the Judicial Service Commission.”

Article 128(2) also provides that “the President shall act in accordance with the advice of the Judicial Service Commission and appoint a person to act in the office of Justice of Appeal or Puisne Judge, as the case may be.”

There is leeway for the President, however, in Article 111 (1) which states that “In the exercise of his functions under this Constitution or any other law, the President shall act in accordance with his own deliberate judgement except in cases where, by this Constitution or by any other law, he is required to act in accordance with the advice or on the recommendation of any person or authority.”

Subsection two states that “Where by this Constitution the President is directed to exercise any function on the advice or recommendation of any person or authority, he may, in accordance with his own deliberate judgement, once refer any such advice or recommendation back for reconsideration by the person or authority concerned.”

It goes on to state that “if that person or authority, having reconsidered the original advice or recommendation, substitutes therefor a different advice or recommendation, as the case may be, the President shall act in accordance therewith; but save as aforesaid he shall act in accordance with the original advice or recommendation.”