Abuse of and discrimination against judges, former judges and persons qualified to be judges
(The following is an opinion piece written by former Attorney General Mohabir Anil Nandlall)
Over the past few weeks, there have been a number of occurrences in the legal fraternity, which have excited public attention and concerns. Were we living in a normal society and in a functional democracy governed by the rule of law, these atrocities would have attracted the strong condemnation of civil -society organizations, such as those championing human rights causes, good governance, constitutionality and the rule of law. But these events have not even attracted a murmur from any of these organizations. Certain media houses even refused to carry them as news item, though in any civilized country, they would have enjoyed lead-story status.
The recent unwarranted, baseless and scandalizing attack upon the Chancellor of the Judiciary by the Attorney General because of a ruling, which coincidentally was the unanimous decision of a Court, comprising of three judges, is not ordinary news. The fact that the State-owned newspaper was used as the vehicle to convey the attack, attached to it an aura of governmental imprimatur which only compounded the scandal. It took no less than the Prime Minister of the country, in a desperate attempt at damage control, to distance the Government from its Attorney General’s reckless public outbursts.
Law Officers of the State
In an effort to divert blame from himself, two senior Law Officers of the State, the Solicitor General and the Deputy Solicitor General, fell prey to the vicious wrath of the AG. They were publicly accused of unprofessional, unethical and incompetent conduct. These are damning charges against any professional which can do unquantifiable damage to their professional reputation and standing. The legal issue was a simple one. The Attorney General appealed in his own name when he was not a party in the court below. Constitution of parties to litigation is one of the first topics taught in any law school. A motion was filed to strike out the appeal filed on that very ground. Any average lawyer would know that such a motion, in those circumstances, would have been unassailable. Therefore, the Court could not have ruled in any other way but to strike out the appeal. Fortunately, both the Solicitor General and the Deputy Solicitor General responded in the Press. The public, therefore, got an opportunity to hear their side. It tells quite a tale.
The Solicitor General pointed out that on two separate occasions and in the presence of others, she advised the AG that the appeal cannot be filed in his name as he was not a party in the court below. She contends that on both occasions, the AG rejected her advice and instructed her to file the appeal with the AG being the appellant. The Attorney General has not refuted these contentions. It is, therefore, reasonable to assume that they are true and consequently, the AG was clearly at fault.
The Deputy Solicitor General was even more detailed in her response. She wrote to the Attorney General and lodged a formal complaint with the Public Service Commission. Both letters were made public. In both correspondences, she outlined the numerous occasions that she, emailed, hand-delivered and even posted letters and memoranda to the AG reminding him of his several professional responsibilities in various cases, including, the one that evoked the controversy and calli8ng upon him to discharge those responsibilities. She claims that these correspondences were carbon-copied to other persons and she has copies of them. Notwithstanding, she contends, the AG abysmally failed to discharge his duties in these cases. Consequently, the State lost these cases.
PPP responds
The AG responded in his usually untutored fashion. Rather than attempt to answer the very serious charges of dereliction of duties leveled against him by a subordinate constitutional office holder, like the proverbial bull in a China shop, he issued another barrage of inane and infantile allegations against the DSG. This time, alleging that she compromises cases in which I am involved because of some perceived loyalty to me and political allegiance to the PPP. Speaking for myself, I have too much respect for my profession and for the professional integrity of my colleagues at the Bar, including, the DSG to dignify such nonsense with a response. However, the PPP has responded in a Press Statement. It pointed out that Ms. Kissoon is neither a member of the PPP nor has any known connections to the PPP. The Statement asks the following pertinent questions:
“Is Ms. Kissoon to be blamed for paying BK. International US $5.7M on a mere letter threatening litigation? Is Ms. Kissoon to be blamed for filing an appeal six months late against the judgement obtained by DIPCON against the State to the tune of hundreds of millions of dollars? Is Ms. Kissoon to be blamed for the billions of dollars in tax write offs for DDL causing Banks DIH to sue the State for $28B in tax refunds? Is Ms. Kissoon to be blamed for Guyana being forced to pay over US $6M to RUDISA because of the APNU-AFC’s rejection to the amendments to the Customs Act? Is Ms. Kissoon to be blamed for the Attorney General lying to the Chief Justice that the Government has possession of Red House? Is Ms. Kissoon to be blamed for the failed illegal attempts to compulsorily acquire private properties on Charmichael Street? Is Ms. Kissoon to be blamed for the Attorney General lying to the nation that he has permission from the Council of Legal Education to establish a law school in Guyana? Is Ms. Kissoon to be blamed for the Attorney General’s unwarranted attack on the Judiciary which even his own Prime Minister condemned? Or is Ms. Kissoon being singled out for her ethnicity, as so many others, were, who have been forced to leave the employ of that Ministry over the last 20 months?”
President violates constitution
To another equally egregious matter, I now turn. During the course of this week, the public learnt that Former Chancellor of the Judiciary, Mr. Cecil Kennard, who is the Chairman of the Police Complaints Authority and Former Justice of Appeal, Mr. Prem Persaud, the Chairman of the Public Utilities Commission, have both been given marching orders by the President. Both of these men were originally instructed to vacate their respective offices within 48 hours. This period was subsequently extended to one month. These men have served the State in the legal system since the early 1960s, until their respective retirement. They continued to serve the public upon their retirement. Their total public service surpasses fifty years each. They are both in their 80s but from all appearances, they suffer no infirmity of body nor mind. The reason given by the President for the sudden termination of their employment is their age. Protection from discrimination is guaranteed to every citizen as a fundamental right and freedom under the Constitution. “Age” is one of the expressed grounds upon which a person cannot be discriminated against, as per article 149 of the Constitution. Yet this is the precise ground upon which these two distinguished jurists were terminated. It is as if article 149 does not exist. So again, the President violates the Constitution. The President is not a lawyer. Is he getting no legal advice? Or, is he disregarding legal advice? A President can be removed from office if he violates the Constitution.
Race & Politics
This matter is exacerbated by the fact that Mr. Hamilton Green, Dr. Clive Thomas, Mr. Earl John, just to name a few, continue to hold high offices within the governmental structure. These men are perhaps older and the latter two are physically immobile. Yet, they are not asked to vacate their offices. It is not without significance that all the victims to whom I have made reference in this article are Indo-Guyanese. They are all lawyers; two females, and two males. But the unfair, unethical and unlawful treatment meted out to them has not attracted the slightest of reaction from either the Guyana Bar Association or The Guyana Association of Women Lawyers. These two organizations that were so vibrant prior to May, 2015, have suddenly become defunct.
Race and politics have contaminated everything in this country.
