No reason for apology to judge, AG tells president.
Attorney-General (AG) Basil Williams SC has informed President David Granger that there is no reason for him to apologise to Justice Franklin Holder, whom he suggests should recuse himself from hearing the case brought by Carvil Duncan to fight his suspension as Public Ser-vice Commission (PSC) Chairman to ensure that the government receives a fair hearing.
Williams made his position known in a reply to a letter from President Granger, dated March 29, 2017, requesting a res-ponse to a report by Justice Holder about his conduct in court, which the judge has deemed “despicable.”
The judge, who made a complaint to acting Chan-cellor Yonette Cummings-Edwards, said he left the bench after Williams uttered the words: “I could say what I want to say and when I want to say it, I have always been like that.” Justice Holder said he left the bench without adjourning the matter or giving instructions to either party. He also said he was not prepared to hear Williams as an attorney-at-law in any matter “unless he makes a genuine and meaningful apology” in open court both to him and to the Members of the Bar, whom he said were scandalised by the AG’s conduct.
Following a hearing in the Duncan case on March 23, Williams was accused by Duncan’s attorney, former AG Anil Nandlall, of threatening Justice Holder.
Williams had subsequently denied both this accusation and the judge’s complaint that he acted contemptuously. In his response to President Granger, dated April 15, 2017, he continued to deny that he acted inappropriately and also charged that if his conduct had been contemptuous, the judge had a duty, under the Contempt of Court Act, to inform him of such before leaving the bench on the day of the encounter.
He also called into question the decision by the judiciary to approach the President in order to resolve the issue, while noting that such an approach is unknown to Guyana’s jurisprudence because from time immemorial, the common law has granted the power to a judge presiding in a court to cite and punish persons for contempt in the face of the court.
“Contempt of court is a criminal offence and Justice Holder was required under the provisions of section 12 of the said act, to inform the Hon Attorney General of the contempt with which he wished to charge him before the rising of the court on the same day,” he wrote.
“Justice Holder did not inform, warn or in any manner convey to the Hon Attorney General that he considered he was being contemptuous before he left the courtroom that day and was therefore functus officio.
“Justice Holder could not lawfully almost two days later by letter purport to raise accusations of contempt against the Hon Attorney General for what he alleges occurred in his court previously.
“But this is exactly what Justice Holder has done,” he argued, while also challenging the judge’s account of their encounter.
‘Fair hearing’
Williams added that Article 144(8) of the constitution prescribes that a court shall be independent and impartial and should give a fair hearing and as a result a judge would be required to give an attorney notice of any behaviour that is contemptuous, insulting disrespectful and despicable in the face of the court.
“The Hon Attorney General respectfully assures your Excellency that he was never contemptuous of the court and if he were, the learned judge would have informed, warned, cautioned, cited and charged him for contempt,” he insisted. “There is no substratum to support an apology and Justice Holder would be in breach of Section 12 aforesaid if he seeks one after the rising of the court,” he later added.
Williams further argued that the judge’s “unsupported allegations” as well as those of Nandlall have brought him into public odium and contempt and that he has suffered in the estimation of right thinking members of society.
He added that he had sought through mediators to meet with the judge to resolve “any misapprehensions he might be harbouring” but was unsuccessful.
Addressing the future hearing of the case, Williams emphasised that a fair hearing, in accordance with Article 144(8) is paramount. “The Hon Attorney General humbly suggests that Justice Holder recuses himself and sends the matter back to the Chief Justice for re-assignment,” he wrote. He also suggested that in future the case be conducted in a courtroom where there is a Voice Verbatim Digital Sound Recording System or any other contemporaneous recording to avoid the “last bastion of a lawyer’s servitude” before the courts.
‘Abundant caution’
Justice Holder had contended that Williams addressed the court “in a rather loud and bellicose tone,” insinuated that the court was being selective in recording the evidence and behaved in a truculent manner.
However, Williams, in his explanation, said he made enquiries out of abundant caution and in conversational and reassuring tones.
According to the AG, he made no insinuations rather he “inquired of Justice Holder Ex Abundanti Cautela (out of abundant caution)” if he could clarify whether the witness’s answer was accurately recorded.
In his response, he said, Justice Holder’s response was, “Mr Williams you are not in control of my court,” which he said he agreed with before noting “in a conversational tone” that it was Nandlall who had been seeking to take control of the court the entire morning.
“To assure the learned judge, the Hon Attorney General referred to a case years ago where a magistrate made a similar accusation when he was before him claiming that when the Hon Attorney General said he never failed a subject at law school he understood he was saying that he the magistrate had failed subjects. The Hon Attorney General said the magistrate cited him for contempt and since then he has been very careful with his submissions to the court lest there be a recurrence. The Hon Attorney General then said incidentally the magistrate is dead now, to let the learned judge know that he was not someone who is still in the system,” he explained. He added that “in a reassuring tone” he told the judge that he [the judge] knew him and if he [Williams] had wanted to say what the judge contended, he would have done so.
“This engagement took no more than 3-5 minutes and ended when Mr Nandlall made another interruption and Justice Holder left the bench. At no time was the Hon Attorney General disrespectful, insulting or contemptuous of Justice Holder,” Williams maintained.
According to the AG, Justice Holder has the distinction of being the first judge since independence to make orders against both the President and Prime Minister of Guyana in one fell swoop, without giving them a hearing. “Therefore Justice Holder could not have fled the bench because of the Hon Attorney General, an appointee of the President,” he added.
Observers have, however, noted that even in his own rendering of the events of the day in question, Williams’ words did not comport with what was expected from the AG, Minister of Legal Affairs and the Leader of the Bar.
Apart from the judge instituting contempt proceedings against Williams, Senior Counsel Ralph Ramkarran, writing in his weekly Conversation Tree column earlier this month, had said that the Chancellor (ag) can convene the Full Court and set in motion the process to hear a complaint of misconduct against Williams. “The Full Court can impose a penalty as severe as disbarment,” Ramkarran noted.
