Both Attorney General (AG) Basil Williams SC and Justice Franklyn Holder ought to take the blame for the chain of events which followed their altercation in court in March, according to Senior Counsel Bernard De Santos, who says that acting Chancellor Yonette Cummings-Edwards erred when she got the President involved instead of dealing with the matter internally.
De Santos, who has been in the legal profession for over 50 years and previously served as AG, believes that the damage done will be now be difficult to reverse but that the acting Chancellor ought to address the report made by Justice Holder and “set in motion” appropriate action.
At a hearing on March 23, in the matter of Carvil Duncan’s challenge to his suspension as Public Service Commission Chairman, the judge rose from the bench in the middle of an exchange with Williams without adjourning the matter. He subsequently said that it was after Williams declared, “I could say what I want to say and when I want to say it, I have always been like that,” that he was moved to rise from the bench.
Speaking to Sunday Stabroek, De Santos noted that the facts in this matter are very unclear as both Williams and the judge have conflicting accounts of what occurred at the hearing. However, he said Williams will find himself in a difficult position if he accepts the judge’s account, given that he is supposed to be setting an example as the leader of the Bar.
Noting that he disagrees with some of the views being ventilated in the media, the Senior Counsel made it clear that he believes at the very least that the AG is guilty of improper behaviour.
De Santos said that he faults Justice Holder for the way the matter was handled initially. He said that if the judge felt that Williams’s behaviour was contemptuous, the matter should have been dealt with immediately. He said that in such a situation, the ball was in the judge’s court as he was the “judge, jury and executioner.” Williams, he said, would have had no opportunity to plead, but would have been given the opportunity to say something before judgement was passed.
According to De Santos, all Williams had to do was indicate that he meant no disrespect and apologize to the court for his behaviour. “Had this been done, what is occurring now would not have occurred,” he said, before adding that the chain of events has now opened the legal profession to ridicule by those who felt the AG did wrong and those who felt the judge did wrong.
De Santos explained that from what he has been reading, the judge is not really looking at contempt which could attract jail time if the judge so desires, but rather rudeness on the part of the AG.
Following the incident, Justice Holder penned a report to the acting Chancellor, who in turn sent the letter to President David Granger. There are differing views on whether she should have done this.
De Santos said this should never have happened given that there is the separation of powers enshrined in the Constitution. “This situation is not a situation which warrants a reference to the President. It is an internal, professional problem which has to be dealt with in a manner prescribed,” he said.
De Santos said the acting Chancellor might have brought the President into the matter given that the AG is also a minister of the government. “Maybe what the Honourable Chancellor had in mind when she referred the matter to the President was for him to deal with the political aspect, the governmental aspect, after all he appointed Mr Williams… He can sack him,” he said.
However, he maintained that she erred and “diluted a stream” which ought to be preserved, that is, the separation of powers.
Williams has 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.
The acting Chancellor had said a copy of Justice Holder’s letter was sent to Williams by her “for his information, guidance and any response” but that Williams did not directly respond to it.
He, however, made it clear that she never asked him to respond, although he did send her copies of his response to the President on the issue. Given that the matter was in the public domain, De Santos said, Williams should have made a voluntary decision to put his position in writing and send same to the acting Chancellor. “All these things, I think, add up and Mr Williams doesn’t notice. He seems to be digging his own grave.
“He should never have taken a personal dislike to Anil Nandlall,” he said, while noting that things can get heated in court but all animosity ought to be left behind in the courtroom.
Justice Holder, in his report to the Chancellor, made it clear that he was not prepared to listen to Williams in any matter unless he apologized to him in open court.
But Williams did not show up on May 8, when the next hearing was held, instead two attorneys from the AG’s chambers turned up. The judge recused himself from the case at the hearing.
According to De Santos, outside of the court Williams was saying that the judge should recuse himself. He said if that was what he wanted he should have gone to court and explained the circumstances which would require the judge to consider such a request. “I don’t think you just ask the judge …I think it is only fair, right, proper and appropriate that you explain the circumstances and then say in light of these circumstances, I respectfully ask that you recuse yourself. But he didn’t do that,” De Santos pointed out.
What now?
Though the judge has recused himself from hearing the case, some observers have said that the judge’s report on Williams’ conduct is still to be dealt with.
Sunday Stabroek made attempts to speak with the acting Chancellor during last week. Her office indicated that a message had been passed to her about this newspaper’s request but no response has been received as yet.
De Santos said that in a matter such as this, complaints should have been lodged with the acting Chancellor in that capacity, as well as in her capacity as the Chairperson of the Judicial Service Commission.
De Santos opined that the acting Chancellor should set in motion such actions as she considers appropriate to deal with the report.
Noting that the solution to this issue is a very complex one, he said, “It has been made to go awry already and to get it back on the straight and narrow is not an easy thing now.”
Describing Williams as more of a friend than Holder, whom he knows in a professional capacity, De Santos said in this situation there is no room for favouritism or friendship.
“What we have to do here is behave in such a way as to preserve our profession, to preserve our professional integrity so that the public can have confidence not only in us as practitioners but the system in which we operate,” he emphasized.
De Santos pointed out that based on his observations, there is a lot of animosity and ill will between Williams and Nandlall. “As long as they keep at it, there is going to be no end and we don’t know what will happen because Mr Williams is a tempestuous chap. I would describe Nandlall as being forceful and he likes to be in the public eye… If you put those two elements together, there is bound to be a flare-up sometime, which is not going to be good for the profession or either of them,” he said, while noting that they just need to be lawyers and keep away from engaging in personal attacks.
It was Nandlall, Duncan’s attorney, who first reported on the altercation and charged that the judge had been threatened. Williams has repeatedly denied threatening the judge or committing any wrongs.
Williams, a week after the incident, stopped short of publicly apologizing for his conduct but expressed his willingness to work along with the judge to have the matter sorted out.
“…We can’t allow Nandlall to create this problem and then we leave it unresolved…The judge and I will resolve the issue,” he had told reporters.
He had told a press conference prior to the release of Justice Holder’s report that the judge had interpreted one of his comments as an accusation that he was not recording evidence accurately and took umbrage.
Before announcing his decision to recuse himself, the judge recalled the sequence of events from the previous hearing. 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 “loud and bellicose manner,” said that he must record “no” based on the response of Dianna Persaud, a witness for Duncan, who was being cross-examined at the time.
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 at that point he 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 evidence.
The judge noted that Williams, in a rather truculent manner, while standing in the well of the court, responded that “the last person who told me what I should not say was a magistrate and he is now dead.”
Following that statement, the judge said, Williams then declared, “all morning 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,’” which prompted him to rise from the bench and retire 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.”
