The AG and the Judiciary

Justice Franklyn Holder’s decision to recuse himself from the case at whose March 23rd hearing he later reported that the Attorney General Basil Williams engaged in “despicable” conduct leaves unsettled quandaries for both the judiciary and the presidency.  The judge’s recusal has not mitigated in any way the dilemma posed by the AG’s behaviour, indeed it has concentrated attention on it.

It is regrettable that of his own counsel, Justice Holder decided to recuse himself without even a formal application for such presented before him at last Monday’s hearing of the matter at which the AG did not do him the courtesy of appearing.  In explaining his decision, the judge cited the “politicising” of the matter. The administration of justice cannot be allowed attenuation on the grounds of perceived politicising of matters otherwise there would be a revolving door of recusals at the drop of a hat.

There seems a broad acceptance in legal circles that the judge failed to take control of matters in his court on March 23rd by instituting contempt proceedings against the AG.

The imperative of judges having recourse to contempt proceedings has long been underlined as a means of ensuring that the court retains control over its jurisdiction.

In Re Rea (No. 2), May, CJ said:

“It is plain that no tribunal could be maintained with order and decency unless the presiding Judge had the power of dealing with the suppressing of contempts committed in open Court. It is for the sake of the administration of justice, and in order to maintain the decency and order of judicial proceedings, that this extensive and summary power is confided to a Judge.”

The Law Reform Commission of Canada in addressing the matter said as follows:

“First, the judge must remain in full control of the hearing. If it is interrupted by misbehaviour in the courtroom, he must take steps to restore order as quickly and effectively as possible. The time factor is crucial: dragging out the contempt proceedings would mean a lengthy interruption to the main proceedings, thereby paralysing the court for a time, and indirectly impeding the speed and efficiency with which justice is administered.

“Secondly, the judge’s power to control the court proceedings would be weakened if contempt proceedings were heard by another court. The second court would have to hear evidence about the act, with the judge before whom the disruption had taken place as principal witness. And should the accused again misbehave in court, the contempt case itself would have to be referred to still another court, and so on. The administration of justice could be brought to a complete standstill”.

Prior to his formal recusal from the case, Justice Holder, in a statement, however solidified and underlined the AG’s contemptuous behaviour in facie curiae.

After an answer was given, Justice Holder said the AG proceeded to make statements which were “insolent and disrespectful in both tone and content.”

The judge noted that Mr Williams, in a rather “loud and bellicose manner,” said that he, the judge, must record “no.”

According to Justice Holder, he thereafter assured Mr Williams that a record was being made that the witness has said “no.” Not being satisfied with the court’s assurances, the judge said the AG followed up with words to the effect that previously the witness had said “yes” in answer to an earlier question and the court chose not to make a record of this.

Justice Holder said at that point he told Mr Williams that he took umbrage to his tone and what he was insinuating, which was in effect, that the court was being selective in recording the evidence.

The judge noted that Mr Williams, in a rather truculent manner, while standing in the well of the court, responded by saying that “the last person who told me what I should not say was a magistrate and he is now dead.” According to Justice Holder, there were no words spoken before or after by Mr Williams to explain or clarify this statement as reported in the press.

Following that statement, the judge said that Mr Williams then declared, “all morning [Duncan’s attorney] Nandlall disrespecting you and you have not done anything about it.” This, the judge asserted, was not a true statement reflective of the proceedings.

Justice Holder emphasized that addressing the court by the use of the pronoun “you, ought to count in any quarter as being disrespectful.”

The judge said that this was followed by “a most egregious statement of Mr Williams, to wit, ‘I could say what I want to say and when I want to say it, I have always been like that.’ ”

It was after this statement, that the judge said he rose from the bench and retired to his chambers.

Justice Holder said that taken individually, the statements he recounted that were made by Mr Williams “may be perceived as insolent behaviour and not necessarily contempt of court.”

When considered collectively and within the time frame they were made, the judge, however, asserted that the statements prima facie constitute “contemptuous behaviour.”

Mr Williams’ behaviour in court on March 23rd was reported by Justice Holder to the acting Chancellor of the Judiciary, Justice Yonette Cummings who on March 24th wrote separate letters to President Granger and to AG Williams on the matter. These letters were released to the media by Mr Williams and were disappointing in terms of the need for clarity and an unequivocal intent to defend the dignity and standing of the judiciary.

Mr Williams released the Chancellor’s letter to him to show that there had been no request for a response to Justice Holder’s report on the matter as had been implied by Justice Cummings-Edwards. Indeed, the terse correspondence to AG Williams from the Chancellor simply said that “I forward herewith the attached letter from Mr. Justice Franklyn Holder. For your information”.

The purpose of the correspondence by the chancellor should have been to elicit a defence to the report made by Justice Holder and this should have been pellucid. Notwithstanding this omission, it should have been clear to the AG that he needed to transmit a detailed response on the report to the Chancellor.

In her letter to the President, the Chancellor said, “I bring to your Excellency’s attention the caption `AG threatened Judge’ on the online `Citizens Report’ and in the printed media (Kaieteur News). The reports are damaging to both the judiciary and brings the office of the Attorney General into disrepute.

“I am obliged as acting Chancellor of the Judiciary to bring to your attention the letter from Justice Holder and the current state of affairs.

“I have sent a copy of the report from Justice Franklyn Holder to the Honourable Attorney-General”.  The Chancellor then ends the letter.

Neither letter by the Chancellor evinces any convincing intent to uphold the dignity of Justice Holder’s court or even more important the judiciary’s standing as a branch of government and one which should not be scandalised or brought into disrepute gratuitously.

Further, despite her letter to the AG on March 24th, the Chancellor took no known action in the intervening weeks to ensure a resolution of the matter. Following six weeks of silence, on May 4th, the Chancellor in a release said that Mr Williams had not “directly responded” to the report by Justice Holder demanding an apology over Mr Williams’ conduct in his court on March 23rd, 2017.

With Justice Holder’s decision to recuse himself and Mr Williams not apologising to the court, the Chancellor will have to address the reality that the public perceives that a judge was gravely disrespected by counsel who also happens to be the Attorney General, the Minister of Legal Affairs and the Leader of the Bar and that this was allowed to pass.  This weakens the judiciary and leaves it at risk of indignities.

President Granger has been similarly silent on this matter. He had written Mr Williams seeking a response to Justice Holder’s report and received a reply from Mr Williams on March 29 refuting the notion that he should issue an apology to Justice Holder.  More than a month later, the President has made no statement about the conduct of Mr Williams. The risk to the executive is that an ineffaceable image would be left of a Cabinet Minister and the nation’s Attorney General disrespecting a judge in his court with no action being taken to address this. Indeed, the intervention in this matter by Prime Minister Moses Nagamootoo had the effect of sweeping aside any concern about the disrespecting of the court.

The many stakeholders will no doubt carefully monitor both the judiciary and the presidency for further developments in this matter.

 

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