Race baiting appeal case struck out for being abuse of court’s process
– attorney accuses state newspaper of misleading reportage
The Court of Appeal last week dismissed the race baiting appeal case involving PPP/C Leader Bharrat Jagdeo, whose lawyer yesterday accused the Guyana Chronicle of being misleading in its reportage on the outcome of the matter.
In the same newspaper article, Deputy Solicitor General Prithima Kissoon was also accused of attempting to free Jagdeo.
The attorney, Mursaline Bacchus, also defended outgoing Chancellor (ag) Carl Singh, pointing out that he was one of three judges who collectively made the decision, though he read it to the court.
A private charge against Jagdeo was brought by attorney Christopher Ram over controversial statements Jagdeo had made at a remembrance ceremony for the late president Cheddi Jagan at Babu John, Port Mourant on March 8, 2015. Jagdeo was charged with making racially divisive statements in contravention of Section 139 D of The Representation of the People Act, Cap 1:02. However, Jagdeo, though his lawyers, challenged the charge in the High Court arguing that it was bad it law and it was later thrown out. It was subsequently appealed.
In a letter to this newspaper, published today, Bacchus outlined all aspects of the case from the beginning to the end.
Making reference to the Guyana Chronicle’s January 19, 2017 article headlined, “Singh strikes” on the front page and “Singh strikes twice” on page three, Bacchus said he was seeking to clear up statements in the article so that the public would not be misled on Jagdeo’s Babu John alleged racial statement case in the Court of Appeal.
He said the article stated that the original application was “put before Justice William Ramlal” this implying that Jagdeo went “judge shopping”.
Bacchus explained that the application was filed by him in the High Court Registry in Berbice on June 26, 2015 primarily because “I practice mainly in Berbice. There was nothing in the rules of court or in practice to deny a lawyer to file such an application in the county where he normally has his practice.”
The attorney said that at the time of the filing of the application for the order of prohibition Justice William Ramlal was the presiding civil judge in Berbice sitting in Bail Court/Motion Court.
Lawyers in Berbice, he stated, do not and cannot choose judges because in Berbice there is a “civil” judge and a “criminal” judge. Applications for prerogative writs are made to the “civil” judge and not the “criminal” judge, he said adding that as such the matter went before Justice Ramlal who granted the order nisi ordering Magistrate Charlyn Artiga, by whom the charge was being considered, to show cause why that order nisi should not be made absolute.
Stressing that the Attorney General (AG) was never a party to those proceedings, Bacchus stated that Magistrate Artiga subsequently filed an affidavit purporting to show because why the order nisi should not be made absolute. That affidavit was drawn by Kissoon and stated at paragraph 24, that the AG was counsel for the magistrate.
Bacchus said that on December 11, 2015, Justice Navindra Singh, after written submissions by himself and Kissoon, made the order nisi absolute; that meant the magistrate could take no further steps in the matter.
At that stage, “only Bharrat Jagdeo and Magistrate Artiga were parties to the proceedings,” the letter said.
On September 13, 2016, Bacchus said, he filed a motion in the Court of Appeal, on behalf of Jagdeo, seeking an order to strike out or dismiss the appeal on the ground that it was an abuse of the court’s process.
This was because the Solicitor General (who has since retired) had filed the appeal against Justice Singh’s order in January 2016, on behalf of the AG, who was not a party to the proceedings. According to Bacchus, this “amounted to an abuse of the court’s process as the Attorney General, not being a party, had no right to appeal.” He quoted precedent for this, which occurred in 2003.
He wrote that a motion to strike out was usually heard “promptly” by the Court of Appeal, but shortly after he filed his motion, the court went on statutory vacation. On its resumption, the hearing was fixed for December 19, 2016 and Kissoon laid over written submissions on that day; he responded ten days later.
Bacchus said that at paragraph two of her submissions, Kissoon “quite properly conceded that the Attorney General was never a party to the proceedings before Justice Singh…”
In her written submissions and orally, she made an application to the court for an amendment to the Notice of Appeal to remove the name of the AG as appellant and substitute Magistrate Artiga’s, Bacchus said. However, he objected, arguing that the Notice of Appeal being a nullity, could not be amended.
He said he also argued that Kissoon had no mandate from Magistrate Artiga to make such an application and in any event the amendment would result in an appeal being filed over one year after the decision of Justice Singh without any grounds to satisfy Order 2 Rule (3) (4 and (5) of the Rules of the Court of Appeal.
On January 9, 2017, he said, the AG appeared in the Court of Appeal in person and was granted leave, at his request, to file further written submissions within 5 days. The matter was then fixed for January 18, for ruling and it delivered its decision dismissing the appeal as an abuse to the process of the court, he said.
Stabroek News attempted yesterday to get a copy of the ruling, but was told that it was not ready.
Bacchus wrote that up to January 18, the AG had not filed any submissions and did not attend court on that date. Instead, a new attorney Judy Stewart from the Attorney General’s office attended the hearing and was placed on record.
Not the chancellor’s decision
Bacchus stated that the Guyana Chronicle article gave the impression that the court was constituted by Justice Singh alone. “That was a deliberate attempt to mislead,” he wrote adding that Justice of Appeal B S Roy and Justice Dawn Gregory were the other two judges and that the court was thus constituted on all the occasions. “The ruling was read by the Chancellor but it was the ruling of the court, that is, by all three judges,” he stressed.
Williams has since signalled that he will file another appeal to the Caribbean Court of Justice.
“In is indeed strange and unfair for blame to be laid, as the article does, at the feet of the Chancellor. The filing of the appeal with the Attorney General as appellant was a colossal blunder on the part of the law offices of the State and that blunder should not be shifted onto the court or any member of the court,” Bacchus wrote. He called it an indictment on the law officers of the State that although the motion to strike out was filed and served on the AG since September 13, no proper application was made for an extension of time to file an appeal on behalf of Magistrate Artiga.
Former Speaker of the National Assembly Ralph Ramkarran SC, in a blistering commentary carried in the Sunday Stabroek, made reference to public attacks on the acting Chancellor and singled out the race baiting case.
He this matter appeared to the first which the government has issues with adding that the actions of the AG was contempt of court.
“If this is not a contempt of court, I don’t know what is… The Chancellor, apparently acting with restraint and dignity, has not summoned the Chronicle and the Attorney General before the Court of Appeal to answer charges of contempt, as he ought to have done,” Ramkarran said.
