High court quashes presidential respite which aimed to shield Finance Minister from criminal contempt
-finds that it was in excess of jurisdiction
`His Excellency’s decision to grant the respite in the manner conferred, and after a court would have considered and refused the application for a stay of execution of the committal order, has the effect of undermining the administration of justice and the rule of law, whilst infringing on the constitutional remit of the Judiciary’
In a major ruling, the High Court has quashed the presidential respite granted to Finance Minister Winston Jordan, who was liable to be held in criminal contempt for the non-payment of over US$2.2 million owed to Trinidad company Dipcon, saying, among other things, that the decision was in excess of jurisdiction and no reasonable argument has been advanced in support of the said decision.
In July last year, Dipcon had filed suit seeking an order of certiorari quashing President David Granger’s decision to grant Jordan a respite from 21 days imprisonment over the non-payment of money owed to it by government for road construction works. Attorney General Basil Williams and President David Granger were listed as the respondents.
Dipcon was awarded judgment to the tune of US$2,228,400 since 2015. Despite a number of orders directing government to honour its financial obligation, including one in late June 2019 for Jordan to pay over the owed amount no later than July 8th 2019 or face 21 days in jail, Dipcon has not received any money.
Last evening, in a terse statement, the Ministry of Finance said it paid Dipcon in December, 2019.
It added that garnishee orders submitted by attorneys Anil Nandlall, Sasenarine Gunraj and the GRA were deducted after which the final sum was paid. It provided no details on the amounts involved.
While the Finance Minister was liable to be held in criminal contempt for nonpayment, President Granger on July 8th 2019, invoking his power under Article 188(1) (b) of the Constitution, granted Jordan, both in his personal capacity and in his capacity as minister, “respite of the execution of the punishment until all appeals and remedies available to him and the state have been exhausted.”
Article 188 (1) (b) of the Constitution says that the president may “grant to any person a respite, either indefinite or for a specified period, of the execution of any punishment imposed on that person for such an offence.”
In a ruling on Tuesday, Justice Nareshwar Harnanan granted the order of certiorari sought by Dipcon, quashing Granger’s decision to grant the respite on the grounds that the decision was improper, unreasonable and/or irrational, arbitrary and ultra vires, in bad faith and in excess of jurisdiction; and no reasonable argument has been advanced in support of the said decision.
One of two key issues considered by the court in the matter was whether the president exercised his discretion under
Article 188(1) of the Constitution of Guyana fairly, properly, lawfully and reasonably.
Citing a number of cases, the judge said that the authorities are clear that it is not for the court to decide whether the grant of respite ought to be granted, but whether the manner in which the president exercised his discretion to grant the respite was proper in accordance with the constitutional provisions, and not arbitrary.
“The factual context of the grant of respite here as contained in the record before this Court, is against a backdrop of a history of non-compliance by the state, with an order of court, that there is no hope of (it) being vacated by a higher Court. Applications for extensions of time to file appeals had been exhausted all the way to the Caribbean Court of Justice (CCJ), without any success,” he noted. “In fact, the CCJ made it quite clear in its assessment of the State’s prospects of success, that the Attorney General failed to demonstrate how there would be a miscarriage of justice, if an appeal is not permitted,” Justice Harnanan observed.
The judge noted that Dipcon had been making strenuous efforts to have enforcement of the initial order of Justice Rishi Persaud for about four years without success. He said that the State’s continued non-compliance with orders of court, culminating with the grant of respite, leads ineluctably to the conclusion that it is acting in bad faith.
While highlighting that there is no statutory duty imposed on the president to give reasons for his decision to grant the respite and under Article 188 of the Constitution, the president has wide discretion and can grant a respite either for an indefinite or a specified period, the judge said that no discretion exercised pursuant to any statutory power, as in the grant of respite, is absolute.
Even the Constitution itself preserves the supervisory jurisdiction of the courts in relation to acts done pursuant to the authority derived from its provisions, and otherwise, he said.
“In spite of there being no duty to give reasons for the exercise of this discretion, there can be no doubt that this high power of a pardon, or the grant of respite, of a term of punishment on conviction of an offence at law, imposed by a constitutionally created, protected and independent tribunal, cannot be activated on a whim, or arbitrarily, and without procedural and legal transparency,” he emphasised.
Justice Harnanan said that while no reason was attached to the decision, Roxanne Barratt, who is the Principal Assistant
Secretary (General) of the Ministry of the Presidency, deposed on the record on the State’s behalf that ‘as a consequence of the failure to obtain a Stay of Execution of the Order for contempt against the Minister of Finance personally, the President of Guyana acted on the advice of the Prerogative of Mercy Committee pursuant to article 188 of the Constitution of Guyana to issue a respite on behalf of the Minister of Finance Mr Winston Jordan both in his official capacity and private capacity.’
“This court is of the view that there can be no other conclusion, but that the president exercised his discretion under Article 188, to grant the respite, after the judiciary pronounced its decision to refuse the stay of execution of its committal order,” the judge said.
Further, he highlighted that Barratt, in
making reference to the president acting on the advice of the Prerogative of Mercy Committee, “did not substantiate same on the record, so as to assist the Court in its clear supervisory jurisdiction to determine whether the basis for the decision was done in a fair, proper, reasonable, just and rational manner, in the particular circumstances of this case.”
“This court can only reasonably conclude that the president would have acted to overturn the decision by the judiciary, when it refused a stay of execution of the committal order. This is apparent as gleaned from the instrument published in the Official Gazette stating that the respite was granted until all appeals and remedies available to him and the State have been exhausted,” the judge said.
“It goes without saying that the president has the discretion to grant the respite of the execution of the punishment imposed on Winston Jordan. However, this decision must be exercised fairly and lawfully, respecting the rule of law and the separation of powers doctrine,” he emphasised.
“His Excellency’s decision to grant the respite in the manner conferred, and after a court would have considered and refused the application for a stay of execution of the committal order, has the effect of undermining the administration of justice and the rule of law, whilst infringing on the constitutional remit of the Judiciary,” Justice Harnanan concluded.
“Further, there is no suggestion on the record before the court that the departure from adherence to the rule of law is justified in the circumstances,” he said.
The court therefore agreed with the contentions by the applicant that the effect of the president’s decision is an interference by the Executive with the functioning of Parliament which had sought to appropriate money to pay Dipcon; an overreach by the Executive into the province of the judiciary which had refused a stay of execution of the committal order, pending appeal; it enables and perpetuates continued defiance by the State, through its Minister of Finance, of Orders of Court and of the provisions of the State Liability and Proceedings Act, by insulating the minister against the lawful consequences of default and contempt; perpetuates the default of the State of its obligations under Orders by the High Court, Court of Appeal and the CCJ; and facilitates the continued deprivation of the fruits of judgment, whilst leaving the successful litigant without any remedy or means to collect its lawful debt.
“It is worth repeating that the particular circumstances on the record before the Court does not set out an evident and intelligible justification for the exercise of the power of Article 188 (1)(b), except that it insulates Winston Jordan, the Minister of Finance, from the consequences of repeated non-compliance with extant Orders of Court, and continues the default by the State, which has no extant appeals of the substantive judgment of the Court,” Justice Harnanan said.
“This insulation is arbitrary, improper, irrational, unreasonable, ultra vires, in bad faith and in excess of jurisdiction. There is no other lawful process by way of appeals which can ultimately impugn the existence and validity of the debt of the state, which must be paid, pursuant to the judgment by Justice Rishi Persaud, made since October 21, 2015,” he concluded.
The other key issue was whether the President of Guyana can be made a party to these civil proceedings. The judge concluded that the president cannot be named as a party to the civil proceedings. “However, his actions in the circumstances, may be challenged through the Attorney General. It is therefore ordered that the president be removed as a party to these proceedings,” he said.
Dipcon was represented by attorney Timothy Jonas.
The judge said that costs to the applicant are to be assessed by filing the relevant application on or before the 14th, April 2020, failing which, the parties would have to bear their own costs.