Op Ed: Clutching at straws!

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By Mohabir Anil Nandlall, Attorney-at-Law

(The following is an opinion piece written by Mr. Nandlall, a former Attorney General of Guyana)

The willful disobedience of an Order of Court constitutes contempt of Court, a quasi- criminal offence punishable by imprisonment. It is public knowledge that on the 28th May 2018, Chief Justice Roxane George granted a Writ of Mandamus “compelling the Minister of Legal Affairs to bring into operation by ministerial order, the Judicial Review Act, Chap 3:06, Act 23 of 2010.” The CJ further ordered that: “the order to enforce the Judicial Review Act should be signed with all convenient speed, which in this Court’s estimation should not be delayed past 31st July, 2018.” The aforesaid language is expressed with such clarity that any person of average intellect would understand its meaning, effect and intent. It brokers no room for ambiguity.

In Stabroek News, 6th August 2018, Attorney General, Basil Williams, is quoted as saying that the CJ’s Order was only brought to his attention just before the 9th August 2018. It is imperative that I narrate the material facts in order to demonstrate the incredulity of this assertion.

When the CJ made the said Order on the 28th May 2018, three lawyers, including, the Solicitor General, representing the AG and Minister of Legal Affairs, were present in Court.  Several members of the Press were also present. The following day, a news item of the CJ’s ruling made the front pages of the Stabroek News, the Kaieteur News and the Guyana Times Newspapers. On the 29th May 2018, the AG issued a two-page press release that consisted, exclusively, of an adverse commentary on the very ruling of the CJ under the caption “CAN THE JUDICIARY GOVERN.” Referring to the said ruling, the second sentence of that Press Release reads, “…the Court has ordered by way of Mandamus, that the Attorney General must bring the Judicial Review Act, 2010, into force.” I repeat for emphasis, that the entire release was an exclusive commentary on the said ruling.

On the 13th June 2018, the AG appealed the CJ’s ruling to the Court of Appeal. On the 17th July 2018, the AG also filed an Application to the Court of Appeal seeking a Stay of Execution of the ruling of the CJ. On the 9th August 2018, the application for the stay of execution was dismissed by Justice of Appeal, Rafiq Khan. Again, this ruling of Justice of Appeal, Khan, was a major news item in all the Newspapers and in most of the other press outfits operating in Guyana. On the 11th August 2018, the AG issued another Press Release exclusively dealing with both the rulings of the High Court and the Court of Appeal and signalling the Ministry of Legal Affairs’ intention of holding consultations with a view of amending the Act, rather than complying with the CJ’s Order.

In the face of the above indisputable facts, the AG outrageously maintains that it was only on or about the 9th August 2018, that he became aware of the CJ’s Order compelling him to bring the Act into force by the 31st July 2018!

As I indicated above, the CJ compelled the Minister of legal Affairs to bring the Act into force by the 31st July 2018, latest. While the application for the stay of execution was pending in the Court of Appeal, an interim stay was granted. That interim stay was discharged on the 9th August 2018, when Justice of Appeal, Khan, dismissed the application for a stay of execution. Therefore, immediately thereafter, that is, on the very 9th August 2018, itself, the AG was in violation of the CJ’s Order. So, on the 11th August 2018, when the AG issued that Press Release signalling his intention to hold consultation and amend the Act, rather than to bring it into force, he aggravated the violation of the Order, which violation was continuing. Aggravating the violation even further, on the 16th August 2018, the AG published in the Official Gazette and Order operationalizing the Act, but suspending it from coming into force until 1st January 2019. By so doing, the AG, again, demonstrates absolute disrespect for and boldly violates the CJ’s Order, which mandates him to have brought the Act into force since the 31st July 2018. This brazen violation of the Justice’s Order continued until the 27th August 2018, when the AG finally issued a ministerial order bringing the Act into force, retroactively from the 31st July 2018.

The matters aforementioned have all been previously ventilated in the public domain. From the above recitation, it is clear that, at a minimum, from the 9th  August 2018, until the 27th August 2018, the AG persistently refused to comply with the CJ’s ruling. As a result, litigants were deprived and denied access to the Judicial Review Act for this period without any lawful justification. It is common knowledge that contempt proceedings have been filed. Perhaps, recognizing the dilemma in which he finds himself, the AG has begun his defence in the public domain. It is a fact of public notoriety, supported by a veritable preponderance of indisputable evidence that the AG’s modus operandi is, in defence of himself, he throws others under the proverbial bus. Yours truly and the unfortunate, but professional staff at the AG’s chambers are his regular victims. On this occasion, there is no exception.

At a Press Conference held last Monday, in attempting the impossible task of concocting a defence for himself in respect of issuing the Order on the 16th August 2018, operationalizing the Act, but suspending it until 1st January 2019, the AG blamed his staff for a ‘mix up’ at his office, claiming the wrong date was printed on the initial commencement order. However, what the AG omits to disclose is that the Order was signed by him and it only contained two lines. Is he telling the nation that he signs documents, (moreover one containing two-lines), without reading them? It is also a striking coincidence that in the Press Release issued on the 11th August 2018, just days before, the AG signals intentions to hold consultations and amendments. This was followed by the Order which suspends the Act from coming into operation until the 1st January 2019, allowing time for the very consultations and amendment of the Act to take place. It is clear that the AG does not rehearse these lines before he says them publicly. But then again, perhaps he does.

The AG further contends that he was not personally served with the CJ’s Order and that he never avoided service. These would be live issues in the contempt of court proceedings. The phrase “clutching at straws” readily comes to mind.

 

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