Opinion: The Unruly Horse: A Minister flirting with gaol

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By: Mohabir Anil Nandlall, MP

Attorney-at-Law

Guyana’s Minister of Finance, Winston Jordan, is currently before the Judiciary for Contempt of Court. Thus far, the Judges have fearlessly rejected the contention that Executive Officers of the State are immuned from “contemptus curial”, in the discharge of their official functions. A Stay of Execution sought by the contemner against the subject Order was refused by an appellate court. The Attorney General has signaled an intention to appeal, rather than comply with the Order of Court. In my respectful view, the Attorney General is leading his Executive colleague willingly to the slaughterhouse.

The principle involved, is much larger than the case. In essence, the Attorney General is using the Minister of Finance to put the Judiciary, itself, upon trial. They say, “Fools usually rush in, where wise men dare not enter”. Perhaps, we are witnessing the application of this axiom.

The jurisprudential nature, purport and rationale of contempt and the Court’s jurisdiction in this regard, was eruditely expressed by that legend in legal literature, in the Union of India, V. G. Ramachandran, in his classic, “Contempt of Court”, (2002) at page 3, where the learned Professor states:

The foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice and as such no action can be permitted which may shake the very foundation itself. The purpose of contempt jurisdiction is to uphold the majesty and dignity of the courts of law. It is an unusual type of jurisdiction combining “the jury, the Judge and the hangman” and it is so because the Court is not adjudicating upon any claim between the litigating parties. This jurisdiction is not exercised to protect the dignity of an individual Judge but to protect the administration of justice from being maligned. Power to punish for contempt is for maintenance of effective legal system.

It should be clear, therefore, that every law-abiding citizen and those who believe in the rule of law must have more than a passing interest in the ongoing legal imbroglio. I certainly do. There is no swifter way of hemorrhaging public confidence from any judicial system than by its incapacity or inability to enforce its own edicts. When this occurs, the courts of law lose both their majesty and dignity and the law is easily made an “ass”.

Several of my clients are the victims of the willful neglect by this Minister of Finance to obey Orders of the Court. He does so contumaciously, upon the counsel of the Attorney General, who, so frequently, misconceives his role in the legal process. I have written numerous letters to, attempted to serve multiple Court Orders upon, and had countless conversations with the Minister of Finance on his neglect to obey Orders of Court. At the risk of being audacious, I informed him that in the end, the Attorney General would not accompany him to the gaol.

The only reason I did not file proceedings similar to those that are pending, is because the Minister of Finance intentionally eludes personal service of the Court Orders by a Marshal of the High Court, which is a mandatory legal requirement, prior to the launch of such proceedings. I salute my colleague, Timothy Jonas, for his sheer tenacity. In consequence, several of my clients are, perversely, denied the fruits of their judgement, while powerful political officer-holders flex their egotistical muscles. In the meanwhile, interests continue to accumulate upon these judgements at taxpayers’ expenses. My grandmother use to say, “Moon a run till day ketch am”.

Against such reality, it is difficult to empathize with the Minister of Finance or the Attorney General. Readers will recall that the legal proceedings, which eventually led to the judgement against the State obtained by Dipcon Engineering Limited, is a sordid narrative of the incompetence of the Attorney General. He failed to appeal the High Court judgement within the prescribed time, and then filed an application, several months late, for an extension of time, to file an appeal out of time. The Guyana Court of Appeal roundly rejected the reasons, which he proffered for his tardiness: he sought to blame yours truly and the staff at the Ministry. The Court simply refused to believe such manifest falsehoods. In his attempt to appeal the Court of Appeal’s decision to the Caribbean Court of Justice (CCJ), he committed the elementary error of filing the wrong process. Notwithstanding, the CCJ examined the reasons advanced for his tardiness. In dismissing the appeal, the Court expressed the following caustic remarks:

In her oral submissions, counsel for the State laboured the point that a lot of money was at stake and the case was of great public importance. These very factors highlight how unacceptable are the reasons for the State’s failure to be aware of this pending litigation and the award of judgment, and its failure to apply urgently for an extension of time within which to appeal. To say, regardless of who was in Government, that the State failed to satisfy the most basic standard of care is an understatement.

It is because of this history that I verily believe that the State’s refusal to satisfy the judgement, is devoid of bona fides and is inspired by spite, ego and vendetta. The public is aware of the State’s scandalous payments of millions of dollars in settlements, both in litigation and without litigation, in various instances. One readily recalls the $6.5M USD, paid to BK International Inc. on a mere pre-action letter, in relation to Haags Bosch dumpsite, whereas in fact, the State should have sued that company for breach of its obligations under the contract.

The judgements I have obtained against the State, which are intentionally being ignored, include millions of dollars in compensation and costs, awarded to the poor rice farmers of West Coast Berbice and several public servants, who were wrongfully dismissed by the Government since 2015. These poor and ordinary Guyanese journey to my office, weekly, enquiring about payments on their judgements. I am forced to disappoint them on each occasion.

Additionally, I have sued Dipcon Engineering Limited and obtained judgements against them for and on behalf of twenty ex-employees, who are owed severance pay remuneration under the Termination of Employment and Severance Pay Act. I have already obtained requisite orders of court directing Dipcon to satisfy these twenty judgements, when the State honours its judgement. So, twenty poor Guyanese families are being denied millions of dollars owed to them because of the Minister of Finance refusal to obey the judgement obtained by Dipcon.

We now have to wait and see how far the Attorney General will go in challenging the Judiciary.