Confidentiality breach

Two days ago the Caribbean Court of Justice ruled on one of two election petitions challenging the results of the 2020 poll that had been brought by APNU+AFC. Acting Chief Justice Roxane George had thrown out the petition initially on technical grounds, after finding that presidential candidate David Granger, “a proper and necessary party” to the petition had not been served on time. The decision was then appealed and the appellate court by a two to one majority ruled it did have jurisdiction to hear an appeal against the throwing out of the petition. This decision in turn was challenged by Vice President Jagdeo and Attorney General Anil Nandlall at the CCJ, arguing that because the petition had not been determined on its merits, the Appeal Court did not have jurisdiction to hear the matter.

Now the CCJ, the final court of resort for this country, has found among other things, that although the petition had not been determined on its merits, the decision to throw it out could not be appealed. This brings to an end the opposition’s pursuit of one of the petitions which had been lodged on their behalf, and allows a little more space for serious issues which impact the society to be pursued without being clouded by electoral conceits.

If the disposal of one of these tiresome petitions impugning the validity of the 2020 election is something of a relief to citizens, there was a secondary issue raised by the CCJ which does the government, and more particularly, Attorney General Anil Nandlall, no credit whatsoever. Two days ago the judges were clearly incensed by his conduct which was described as “unacceptable” and capable of bringing the court’s integrity into disrepute.

It is customary for counsel to be provided with advance copies of a judgment on the understanding that confidentiality is to be observed and that such judgment is not to be made public before the CCJ actually issues its ruling. The Court was due to do this in the petition case the day before yesterday, but before it did its decision had been made available on Mr Nandlall’s Facebook Page on Tuesday. This generated a plethora of questions about the Court’s decision which as said, had not been issued in oral form at that point. As a consequence, the post was then speedily removed, and Mr Nandlall in another post stated that the copies of the ruling which had been sent were confidential and had been provided to all attorneys in the matter. That post too now seems to have been taken down.

Since the AG was absent from the hearing, it was Solicitor General Nigel Hawke who had to face the ire of the justices. He offered an unreserved

apology on behalf of Mr Nandlall, saying that the latter asked to be excused since he was travelling to Barbados on behalf of the government, but that he would have no reservation publicly apologising to the Court in person. Mr Hawke was quoted as asking for “forgiveness and mercy and grace” on behalf of the AG.

The judges were not satisfied with Mr Hawke’s second-hand apology, with Justice Jacob Wit being quoted as saying on behalf of the Bench, “We don’t take this lightly at all,” ordering him to publicly apologise via his Facebook Page. In fact he did this saying, “I hereby offer to the CCJ my sincerest apologies for this grave error. Absolutely no disrespect or ill-motive inspired, was intended, or was connected with this post.”

Prior to this he had made an excuse for his misconduct, although he did not include it in his actual Facebook apology. He placed the blame on “an administrator of my Facebook page,” who, he said, “unauthorisedly, made a post which disclosed some contents of an advanced confidential copy of the judgment”. This is all very strange. How did the administrator of the page come to be in possession of the judgment? Surely it is only Mr Nandlall who could have provided it, and if he did, was it not with specific instructions it was not to be used until after the oral hearing? In addition, according to his own account only “some contents” were posted. So did the administrator take it upon himself to decide which parts of the judgment should be posted, or was he given guidance?

The worst of this is that the AG’s action has brought the entire country into disrepute as one which cannot observe the rules and protocols that even the smallest island state in Caricom has no problem with. Mr Nandlall is the most senior law officer in the land and what he does reflects on the nation as a whole. One hopes this is not an example of the government assuming that the lawlessness which is so often the norm in Guyana can be practised outside our boundaries with no consequences. Conversely, is it another instance of arrogance in relation to the conventions of other institutions?

Whatever the case there are consequences. The Court suggested that the policy of providing advance copies of judgments to counsel may have to be reviewed in relation to Guyana. That would be a humiliation if we alone in the Caribbean cannot be trusted to observe confidentiality. We will have to wait and see, but in the meantime the Court has said that the last has not yet been heard of Mr Nandlall’s breach of the confidentiality clause.

Given the circumstances and the damage to the country’s image, President Ali must seek an immediate explanation from Mr Nandlall and then decide whether any disciplinary action is warranted.

Furthermore, it was disrespectful of the Attorney General not to appear before the court on Wednesday for the delivery of the decision and to offer his mea culpa having recognised the egregious breach that had occurred. One can hardly fathom what pressing business the AG would have had on behalf of this government in Barbados which would have detained him from showing due respect to the court.

The people of this country are also due an apology for the public odium which he is directly responsible for.