Magistrate Artiga in fresh appeal bid

OPPOSITION Leader, Bharrat Jagdeo will return to Babu Jaan, Port Mourant, today to rally supporters at a memorial service to honour the late President Cheddi Jagan, but he will be doing so wary of a race-baiting charge still hanging over his head as Magistrate Charlyn Artiga makes moves to file a fresh appeal against the decision of a High Court judge back in 2015 to throw out the case.
An earlier attempt to appeal the case by Attorney General, Basil Williams, was denied by the Court of Appeal, which cited that the AG was not a proper party to the case- something which it said was also backed up by Deputy Solicitor General, Pritima Kissoon, who had represented Williams in the matter.  Artiga filed her motion last week calling on the Court of Appeal to grant her an extension of time to file a Notice of Appeal out of time in the case against the Opposition Leader.
Artiga who presides at the Whim Magistrate’s Court in her Affidavit in Support of Motion said that she believes that it was as a result of an error in the drafting in the Notice of Appeal which resulted in the Court of Appeal striking out the said appeal by the AG on January 18. She said too that it is as a result of the decision of the Court of Appeal that she has filed the motion seeking an extension in time for her to file her appeal out of time.

In April 2015, Attorney Christopher Ram had filed a private criminal proceeding against the former president accusing him of racial incitement on March 8, 2015, when he made statements at a public meeting held at Babu Jaan, Corentyne. According to Ram, Jagdeo said that the opposition speaks about racism consistently and pins it to the PPP but practices the same. He said too that the opposition beats drums at six in the morning and say “let us throw out these coolie people.”
In fact, Jagdeo said, “They shout about racism of the PPP, but they practice racism; the whisper campaigns. In the last elections they went to some of the Afro-Guyanese villages and beat some drums at 6 o’clock in the morning and say let us throw out these coolie people. Get up, go out and vote, throw out the coolie people. That’s the kind of language they use. Anybody from our party who uses that sort of language, we will kick them out; this is our approach.”
He was subsequently charged at the Whim Magistrate’s Court in Berbice by Magistrate Artiga but his  lawyer Mursalene Bacchus moved to the High Court on June 23, 2015, to challenge the decision where he filed an Originating Notice of Motion with Affidavit in Support of Motion seeking the writs of Certiorari and Prohibition against Artiga, the sitting Magistrate in the Corentyne District.
On June 26, 2015, Justice William Ramlal, granted the orders nisi certiorari and prohibition against Artiga and on December 11, 2015, Justice Navindra Singh made the orders nisi granted by Justice Ramlal absolute.
The following month, a Notice of Appeal was filed by the Solicitor-General on behalf of Artiga within the prescribed time but Attorney General and Minister of Legal Affairs Basil Williams was named as the appellant. On September 2016, Jagdeo filed a Notice of Motion with Affidavit in Support of Notice of Motion seeking an order that the appeal filed by the Attorney General be dismissed and or struck out as an abuse to the process of the Court.
The full bench of the Court of Appeal on January 18, 2017, ordered that the appeal filed by the Attorney General be dismissed.  The Court of Appeal said that the appeal was dismissed on the ground that the Attorney General was not the proper party to be named in the case as Magistrate Artiga was the named respondent in the prerogative writ.
Meanwhile, Artiga in her Affidavit in Support of Motion said the grounds of appeal she intends to rely on are that the ruling by Justice Navindra Singh is erroneous in point of law in as much as he “misdirected himself on the elements of the law constituting the offence charged and took extraneous matters into consideration to arrive at his decision by making findings of facts in order to arrive at his ruling”, by using a dictionary to interpret the meaning of the words race, racial, ethnic and hatred and by making absolute the orders Nisi of Justice Ramlal.

The Magistrate also contends that the Judge erred by applying sociological and anthropological theories to interpret the Act to determine whether the words used by the defendant disclose an offence under the said Act, that by ruling that she did not have jurisdiction when she overruled the submissions by Jagdeo’s attorney, and by failing to consider and totally disregard the legal effect of the provisions of Section 59 (2) of the Criminal Law Procedure Act Cap. 10:01.
Additionally, Magistrate Artiga noted that the invalidity of an act must be established by the party who alleges and cannot be presumed and the court cannot assist an individual in establishing that invalidity. She argues that the rulings of Justice Singh are premised on erroneous presumptions and conclusions that “even if a specific race or ethnicity of these groups can be established by evidence, which is doubtful, that would not change the fact that the charge would be defective.”
Justice Singh also ruled that without any particulars, a race or ethnicity cannot be attributed to the “opposition” much less a race or ethnicity from “coolie people.” He said too that “even if a specific race or ethnicity of the ‘opposition’ can be established by evidence, which is doubtful, that would not change the fact that the charge would be defective with respect to this statement (Jagdeo’s statement) since it does not disclose any facts that establish that second element…it is clear that…even if what is alleged in the particulars of the offence is proved that there cannot be no resulting connection since no criminal offence is disclosed.”
But Artiga said that the trial judge misinterpreted the provisions of the Act when he stated in his ruling that to constitute an offence, a charge, it must be shown that the applicant was calling for, , or encouraging the hatred of one group by another on race or ethnicity. Artiga’s contention is that by Justice Singh’s ruling he was importing into the Act the words “calling for, supporting or encouraging the hatred of one group by another on race or ethnicity.”
Her Affidavit in Support of Motion said too that “there is no admissible evidence in the Affidavit of the Applicant in support of the Notice of Motion No. 2-N/M of 2015 for the Orders Nisi of Certiorari and Prohibition to support the finding by Justice Ramlall made on the 26th June, 2015, that by overruling the submissions of the Attorneys-at-law for the applicant that the said decision or ruling of the said Magistrate Charlyn Artiga is irrational, unreasonable , erroneous in law and is null, void and of no legal effect.”
Additionally, she contends that there is no admissible evidence on record to support the said Order Nisi of Prohibition granted by Justice Ramlal which said that she has no jurisdiction to inquire into or continue to inquire into the said charge which is fundamentally defective and legally invalid and that the continuation of the said criminal proceedings in and of the process of the court.
She noted that the legal issues which are the subject of the appeal are matters of “grave public interest” and is essential to the practice at the criminal bar that there is clarity on the ingredients required to be established in relation to the offence of making statements contrary to section 139 (d) (1) (a) of the Representation of the People Act, Chapter 1:03.
“I am advised as aforesaid and do verily believe that there are arguable grounds for this appeal which this honourable court ought to address in order to ensure that there is clarity at the criminal bar in relation to the ingredients to be established in relation to the offence of making statements contrary to section 139 (d) (1) (a) of the Representation of the Peoples Act