Demerara High Court Judge Navindra Singh has denied an oral request made by Attorney-at-Law Selwyn Pieters for him to recuse himself from hearing the A Partnership for National Unity/Alliance For Change (APNU/AFC) challenge to the passage of the Natural Resource Fund (NRF) Act, in which the lawyer alleged a reasonable bias has occurred.
Opposition Chief Whip Christopher Jones and trade unionist Norris Witter (the claimants), earlier this year, filed a Statement of Claim (SoC), arguing that due to the absence of the parliamentary Mace – the most significant symbol in the National Assembly and parliamentarians not being seated—the Act cannot be regarded as being lawfully passed. On the night of December 29, 2021, Members of the APNU/AFC had dislodged the Mace from its position at the House Clerk’s desk and protested in an attempt to prevent the Natural Resource Fund Bill from being passed.
At one point in the National Assembly proceedings, Speaker Manzoor Nadir’s Personal Assistant was seen latching onto the Mace while lying on the floor in an attempt to secure it, while the Opposition parliamentarians stood by hurling racial slurs and taunts at him.
The APNU/AFC’s protest and mounting calls for the Bill to be sent to a Special Select Committee had no effect as the Government passed the Bill. Nadir is adamant that the NRF Act was lawfully passed, noting that a replica Mace was in place. He had explained that almost all Parliaments in the Westminster system have two Maces in case one is not being found or is stolen.
When the trial into the matter continued on Wednesday, Pieters asked Justice Singh to recuse himself from hearing the case because he refused to shake his hand on Tuesday when he was taken to the Judge’s chambers by Roysdale Forde, SC, to be introduced to him for the first time.
Pieters told the court that Justice Singh effectively said that he did not want to be introduced to him, and made other impolite remarks. Pieters and Forde are representing the two claimants.
According to Pieters, he believed the Judge acted in the manner he did because of testimony he gave about him at the 2016 Commission of Inquiry (CoI) into the Camp Street Prison riots.
During his testimony then, Pieters had called out Justice Singh for imposing inordinately lengthy sentences on convicts, which he had noted, is contributing to overcrowding at the prisons.
As a result of Justice Singh’s position on Tuesday, Pieters contended that he cannot fairly and impartially adjudicate the matter, that his judicial temperament was inappropriate and that his conduct towards him was hostile. Additionally, Pieters told Justice Singh that although the case is being heard via audio/visual link, “your court has not let me into the Zoom meeting.” These incidents, he argued, signal that the Judge would be biased.
Completely irrelevant
Weighing in on Pieters’ request, Attorney General and Legal Affairs Minister Anil Nandlall, SC, expressed that it was quite unfortunate that Pieters chose that manner in which to ventilate the issue. “It could have been done much more civilly and elegantly… the law is very clear upon what grounds one can allege bias…and upon what grounds a tribunal can recuse itself.”
While it is a very serious matter when such allegations are made against a Judge and very serious when a Judge is invited to recuse himself, Nandlall pointed out that the incident that took place in Justice Singh’s chambers is “completely irrelevant” to the case at bar.
“I don’t see any basis whatsoever for the allegation to be made and no basis for it to be sustained,” emphasised the Attorney General as he asked the Judge to dismiss the application.
Justice Singh, in his ruling, held that given what transpired on Tuesday, there was no ground upon which an application alleging bias could be made.
In fact, the Judge noted that Pieters “has not demonstrated that the court has any bias against him.”
“The court does not wish to be introduced to him [Pieters]…I don’t know that that is a bias,” stressed the Judge in dismissing counsel’s request.
When the trial continued on Wednesday, Jones, the Opposition’s Chief Whip, recalled that a list of names of parliamentarians to speak on the NRF Bill was submitted to the House Speaker.
Among the names were APNU/AFC MPs Juretha Fernandes and Khemraj Ramjattan. Led into testimony by Forde, Jones agreed with his lawyer’s suggestion that before an MP rises to address the House, the Speaker would usually call his/her name.
Although Ramjattan’s name was listed, he was not called upon to speak, Jones said. He further agreed with Forde that a replacement Mace was used by the Speaker to continue the National Assembly proceedings because the standard Mace was taken outside.
Under cross-examination by the Attorney General, Jones admitted that the Speaker was in control of the National Assembly, which was regulated by Standing Orders.
Further probed by the AG, Jones recalled that he had stood up and requested of the Speaker that the passage of the NRF Bill be delayed, for it to be sent to a Special Select Committee.
He agreed with Nandlall that his request was rejected by the Speaker, who informed him that the Opposition would get an opportunity to pursue any action on the Bill. Asked by Nandlall, if he was bounded by the Speaker’s ruling, Jones replied “yes”. Questioned as to why he and his colleagues were pounding their desks and shouting, the Opposition Chief Whip said that this was to ensure that Article 13 of the Constitution was complied with by Parliament.
Grilled by Nandlall if he and his associates’ behaviour were in defiance of the Speaker’s direction for Finance Minister, Dr Ashni Singh to speak on the Bill, Jones responded, “correct”.
In recapping what transpired on that night in the National Assembly, Jones said that Parliament staff and Government and Opposition MPs were grabbing onto the Mace.
Witter and Ramjattan have already testified. The trial will continue all day on December 9.
In an Affidavit in Defence, Nandlall contended that the SoC was an abuse of the court process and without any legal basis. In light of this, he has urged the court to dismiss the matter.
According to the Attorney General, there is no principle known to the law, neither does the Constitution nor the Standing Orders of the National Assembly require that the Mace must be present and in place for Parliament to exercise its constitutional power to make laws for peace, order, and good governance.
He argued that whether the Mace was in place or not, or whether an instrument could be used as a Mace, the purpose of the Mace and matters connected to Parliament were matters over which the High Court had no jurisdiction, as they constitute procedural matters of Parliament over which the Parliament has exclusive jurisdiction under Article 165 of the Constitution.
In any event, Nandlall argued, too, that the Mace has “no relevance and place” in the exercise of Parliament’s constitutional power and authority to make laws.
Jones and Witter, in their claim, are seeking a number of declarations including one that the conduct of the business of the House without the Mace and the later passage of the NRF Bill were illegal. They argued that this was contrary to constitutional values of the rule of law, democracy, inclusive governance, and the Standing Orders of the National Assembly.
The Opposition’s position is that civil society bodies were excluded from consultations on the Bill.
Witter argued that under Article 154A of the Constitution and Article 25 of the Covenant of Civil and Political Rights, he has a fundamental right to political participation in the conduct of public affairs. He argued that this right was violated with the passage of the Bill.
In light of this, Jones and Witter are asking the court to declare that pursuant to Article 154A, the Government in formulating an NRF policy, had a responsibility to engage in consultation.
But Nandlall submitted that a lack of consultation did not in any manner affect the law power and authority of Parliament. He deposed, “It will be contended that the debates among the elected representatives of the people in the National Assembly, which is a component of the legislative process constitutes consultation.” He said that the Natural Resource Fund Bill received widespread national consultations. To support his argument, he reminded that the legislation was a promise contained in his party’s manifesto for the 2020 National Elections – a document he has included as an exhibit. He said that the manifesto itself was a product of five years of public consultations from 2015 to 2020, across all 10 regions, including a grand public consultation held at New Thriving Restaurant, Providence, on February 17, 2019.
For the aforementioned reasons, the Attorney General submitted that he maintained “most resolutely” that the Natural Resource Fund Act was lawfully, validly, and properly passed, and received the due assent of President Dr Irfaan Ali in accordance with the Constitution.
Since the passage of the legislation last December, the Government has gone on to establish the Natural Resource Fund Board. Following parliamentary approval, the Government has made several withdrawals from the fund amounting to tens of billions of dollars which were transferred to the Consolidated Fund to finance national development priorities.
This sum, which was taken out following parliamentary approval, has been transferred to the Consolidated Fund to finance national development priorities.
However, Jones and Witter are further asking the High Court to declare null, void and of no effect, all actions taken by anyone, including the Finance Minister, pursuant to the passage of the Bill, or the constitution of any Board under the NRF. They are also seeking orders necessary to ensure that the NRF is replenished to the extent of all sums disbursed from it.
The defendants in the claim are the Attorney General, Speaker of the House, Clerk of the National Assembly, Sherlock Isaacs, and the Parliament Office.
The Government has said that the NRF Act would ensure the security, transparency, and accountability that Guyanese need in order to benefit from the oil and gas revenues.
The law provides for a governance structure of how these monies will be used with continuous public disclosures, audits, and parliamentary approvals.
Following the ruckus in the National Assembly, the following Opposition MPs were suspended by the Parliamentary Committee of Privileges: Christopher Jones, Ganesh Mahipaul, Sherod Duncan, Natasha Singh-Lewis, Annette Ferguson, Vinceroy Jordan, Tabitha Sarabo-Halley, and Maureen Philadelphia. The MPs have moved to the High Court seeking a declaration that their suspension, is, among other things, unconstitutional and a breach of the principles of natural justice.
Their case comes up for another hearing on Friday before Justice Damone Younge.
