– AG Williams flagrantly violated the sub judice principle in the Duncan matter, says Nandlall
Former Attorney General and Minister of Legal Affairs Anil Nandlall believes his successor should be hauled before the Court for Contempt for his flagrant violation of the sub judice principle when he publicly spoke on the Carvil Duncan matter, currently engaging the attention of the Court.
Nandlall contended that Attorney General Basil Williams is no ordinary litigant and therefore his pronouncements on a pending court case will not go unnoticed.
According to Nandlall, Williams practically signalled to the judiciary, government’s desired expectations regarding the Duncan matter.
The embattled trade unionist filed proceedings in the High Court challenging the actions by the Executive to remove him from office as Chairman and a member of the Public Service Commission, a member of the Judicial Service Commission, and a member of the Police Service Commission.
The quintessential issue for the determination of the court is whether or not it is lawful for the Government to have embarked on this path, in light of the fact that there are pending criminal proceedings in the Magistrate’s Court, to which Duncan has pleaded not guilty and whereof his attorney, Nandlall, opines he is protected by a constitutional doctrine which presumes him innocent until proven guilty in those proceedings.
Notwithstanding the existence of these pending proceedings in the High Court, the Attorney General at a recent press conference asserted that the Government can lawfully remove Duncan from office during the pendency of the criminal proceedings and before its determination.
Nandlall argues that the Attorney General is the head of the Bar and the Executive’s principal legal representative and therefore his official influence can be overwhelming.
“He has publicly signalled to the Judiciary and the particular judge, the Executive’s view and I dare say, its expectations. Is the Attorney General attempting to prejudice the outcome of the pending case? Is this the example the head of the Bar is setting for other lawyers? Should lawyers now engage in public articulation of cases which are the subject of pending litigation?” Nandlall advanced.
He strongly believes that the Attorney General satisfied all the ingredients of the offence of Contempt of Court, for breach of the sub judice rule. “In any properly functioning judicial system, Mr Williams would have been hauled before the Judge for Contempt. But it is now a matter for the Judiciary,” the former AG noted.
During the news conference, the AG expressed: “We don’t have to wait for no criminal matter to be completed to move administratively against anybody, that’s always been the rule …if you are a public servant and you are charged for any offence in Guyana, what happens to you? You’re interdicted…”
But Nandlall rapped the AG for thinking that Duncan is a public servant.
“Mr Duncan is the Chairman of the Public Service Commission, a high constitutional office whose function is to employ, transfer, promote and discipline Public Servants. This office holder has a strong regime of security of tenure akin to that of a judge of the Supreme Court. By what rational process of reasoning and logic can such an office holder be equated to a public servant?” he stated.
He explained that the Public Service Commission Rules have no applicability whatsoever to Duncan.
“Indeed, it is Mr Duncan’s responsibility to apply those rules to Public Servants. It is the constitution, the Supreme law, which applies to Mr Duncan. Therefore, not even by analogy, can Mr Duncan be sensibly equated to a Public Servant or can the Public Service Commission Rules apply to him.
In any event, Mr Duncan was not “interdicted”. The President established a disciplinary tribunal to investigate his removal from office. Long after the establishment of the tribunal, Mr Duncan was then “suspended”. Therefore the disciplinary process to remove Mr Duncan from office commenced long before his suspension,” he said in response to the AG.
Nandlall continued by noting that the AG misrepresented or misinterpreted the Public Service Commission Rules.
“These rules clearly provide that if a public servant is charged with a criminal proceeding, no disciplinary action can be taken against him until those criminal proceedings are determined. The rationale is clear: to proceed with disciplinary proceedings while the criminal charges are pending, would not only abrogate the presumption of innocence, but would also prejudice the criminal proceedings.”
Rule 80. (1) of the Public Service Commission Rules provide: “Where criminal proceedings have been instituted in any court against an officer, Permanent Secretary or the Head of Department, the Commission shall not institute disciplinary proceedings against the officer upon any grounds arising out of criminal charge until after the court has determined the matter and the time allowed for an appeal from the decision of the court has expired; but where an officer, on conviction, has appealed, the Commission may commence proceedings after the withdrawal or determination of the appeal.”