Justice Franklin Holder yesterday recused himself from presiding over Carvil Duncan’s challenge to his suspension from the Public Service Commission, saying that he made the decision both in the interest of justice and to distance himself from the “unfortunate machinations” resulting from his report on the “contemptuous behaviour” of Attorney General Basil Williams SC at the last hearing.
Justice Holder made the announcement from the bench at a hearing at the High Court in Georgetown, where the Attorney General was expected to ask that the judge recuse himself in the light of concerns by the respondent, Prime Minister Moses Nagamootoo that he would not get a fair hearing.
Justice Holder, however, told a courtroom filled to capacity that his decision was not recent nor was it informed by any “skewed, illogical and improper reasoning expressed by some as reported in the press but is one deeply rooted in my recognition and appreciation of what is required in the circumstances and in the interest of the administration of justice.”
The judge prefaced his announcement by noting that since the incident at the last hearing, Williams had the opportunity “to do what was fitting and proper in the circumstances” as both Senior Counsel and leader of the Bar. “Instead, wearing another hat he was moved during the ensuing weeks to systematically flip the script and to spin this matter in a manner now common in other jurisdictions, to the extent that it has now in my respectful opinion become politicized and irretrievably infected with the perception of bias,” he said.
“Judges in keeping with their constitutional duties and functions and out of respect for the dignity and majesty of their office do not consort with the press. Politicians for obvious reasons are so wont. The court is not a forum for politicking. This court, for the good of us all, and in its role as guardian of the constitution must remain objective and evidence based. I do not therefore propose to lend any more surface area to the unfortunate machinations now enveloping this matter,” he added.
Williams was a no-show at the hearing yesterday morning.
Justice Holder asked senior legal adviser Judy Stuart-Adonis, one of the attorneys attached to the AG’s Chambers, “Where is the Honourable Attorney General?”
She then responded, “Your Honour, there is no appearance by the Attorney General.”
The matter is now before the Chancellor for reassignment.
At the hearing on March 23, the judge rose from the bench in the middle of an exchange with Williams without adjourning the matter.
Thereafter, in a formal report to acting Chancellor Justice Yonette Cummings-Edwards, Justice Holder made it clear that he would not be hearing Williams as an attorney unless he apologized in open court for his conduct. Williams, for his part, responded to the judge’s missive in a letter to President David Granger stating that he saw no reason for an apology.
‘Insolent and disrespectful’
Before announcing his decision to recuse himself, the judge recalled the sequence of events from the previous hearing, culminating in what he described at Williams’ contemptuous attitude towards the court.
The judge explained that at the time he rose from the bench, Williams was cross- examining Dianna Persaud, a witness for Duncan. Justice Holder said that sometime earlier in the cross-examination, Williams had asked a question, the answer to which the court initially recorded as being “yes.”
Because of what the witness said immediately thereafter, however, and owing to Williams’ desire to cross-examine the witness on a document she had prepared and had in her hand and for which he was making application to have admitted into evidence, the judge said he immediately drew a line through the word “yes.”
Justice Holder’s statement went on to detail, that further into his cross-examination, Williams made certain statements which suggested that he considered it was the record of the court that the witness had said “yes” in answer to his question.
According to the judge, recognizing Williams’ misconception of that part of the evidence, he then read aloud the record of the court in this regard and offered the AG to ask the witness the question again if he so desired, since the record was showing there was in effect no answer to the question.
Williams, he said, did not take up the offer, but proceeded to ask other questions of the witness, the answer to one of which the witness said “no.”
After that 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 Williams, in a rather in a rather “loud and bellicose manner,” said that he must record “no.”
According to Justice Holder, he thereafter assured 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 he at that point told 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 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 Williams to explain or clarify this statement as reported in the press.
Following that statement, the judge said that 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 firmly 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 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.”
Still open
Williams, in an explanation to President Granger, had denied 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.
Explaining how the law deals with contempt cases, Justice Holder yesterday said that at common law, the High Court has an inherent jurisdiction to punish anyone upon its own motion for contempt committed in the face of the court.
This power, he said, has been bolstered by the enactment of the Contempt of Court Act 2010, section 18 of which states, “The provisions of this Act shall be in addition to and not in derogation of any other law in force in relation to contempt of court.”
Citing case law, Justice Holder said that while he chose not to cite Williams for contempt relative to his disrespectful conduct before leaving the bench, it was still open to him under the inherent jurisdiction of the court on his own motion to summon the AG to appear before him, or another judge within a reasonable time afterward to show cause why he should not be committed for contempt in the face of the court.
The judge said he recognizes the provisions of Section 12(1) of the Contempt of Court Act 2010, which states that, “where in the opinion of the court a person has committed a contempt in the face of the court, the court may cause that person to be brought before it either forthwith or at any time before the rising of the court on the same day.”
But he added that he was of the opinion that this provision is not in derogation of the court’s common law inherent power to summon an alleged contemnor, who may have displayed contemptuous behaviour in the face of the court, sometime after the rising of the court.
Justice Holder said that when he rose from the bench at the March 23 hearing of the case, without citing Williams for contempt, it was a decision he made, “not in error, through oversight nor owing to my unawareness of the availability of that option to me.”
He added, “I do not now regret it as it accords in my respectful view with contemporary learning on the issue.”
The decision, he said, “was consciously made with a view to allowing me time for reflection more so taking into consideration Mr Williams’ status of Senior Counsel, Attorney General and leader of Bar.”
Justice Holder also said in his statement that the letter he wrote to the Chancellor on Williams’ conduct was not a complaint, but rather a report.
‘Buckling under executive pressure’
Meanwhile, Duncan’s attorney, Anil Nandlall, who had initially accused Williams of threatening the judge after his reference to a magistrate who was now dead, yesterday lamented that the judge did not cite Williams for contempt and had instead opted to recuse himself on his own motion.
“In the end, the Attorney General’s conduct and subsequent public lies in relation to this matter, though found to be contemptuous, attract no sanction. Further, the Attorney General gets exactly what he wants; for the judge to recuse himself,” he said in a statement.
“I put it mildly when I say that the judiciary has failed to properly assert its majesty or defend itself, competently, in this matter. I have no doubt that it has failed public expectations. Its actions/omissions in this case lend themselves to the interference that it is buckling under executive pressure and influence. That there will be a consequential loss of public confidence in the judicial system, I am in no doubt,” he added.
