The AG’s interpretation of the court’s decision was extremely self-serving

Attorney General Anil Nandlall has regaled the media with a verbose statement on the decision by acting Chief Justice Ian Chang in the case brought by opposition leader David Granger challenging the legality of the spending of $4.6 billion and programmes expressly disapproved by the National Assembly during the 2014 budget debate. Mr Granger sought several declarations that the expenditure was illegal, one order, and a conservatory order staying (stopping) all spending by the government on programmes disapproved or not authorized by the National Assembly until the matter was heard and determined by the court.

According to Mr Nandlall the only matter before the court was the application for a conservatory order and that the hearing and determination of the substantive action was for consideration later. On that basis, Mr Nandlall now argues that the interim conservatory order sought by Mr Granger was the only issue on which the court could properly pronounce.

That is an extremely self-serving and dishonest interpretation of the court’s decision. AG Nandlall did indeed successfully argue against a conservatory order which the court had no option but to accept. The action by Mr Granger’s lawyers was brought in December 2014 to halt certain expenditure for the year. Mr Nandlall is now gloating over that refusal.

Sadly, Mr Nandlall either did not understand the decision or is unfamiliar with the principle of law involved in the case.

There is no dispute of facts in this case, a point made by the court on more than one occasion in its written decision. Indeed it was the Minister of Finance who himself admitted to the spending when he brought to the National Assembly for approval the statement of excess for the $4.6 billion spent on programmes expressly disapproved earlier by the National Assembly.

Applying the constitutional provision to the undisputed facts the court found that “it is clear that the prohibition contained in article 217 (1) (b) of the Constitution was infringed.” That prohibition is against any withdrawal from the Consolidated Fund except as authorised by an Appropriation Bill passed by the National Assembly and assented to by the President.

The principle that guided the court in arriving at its decision on both the interim question relating to the Conservatory Order and on the substantive issue of the spending is well established and reported and that is, when a matter of pure law is raised the court should deal with the matter finally and definitively.

Ostensibly Mr Nandlall wants the substantive matter to go through another round of meaningless arguments completely unmindful of the consequential and “complete waste of judicial time” hearing the “same arguments in law rehearsed all over again.”

Confronted with a finding by the Constitutional/Administrative Division of the High Court that he provided bad advice to the government resulting in the unconstitutional, and unlawful and unauthorised expenditure of $4.6 billion up to June 16, 2014, it would have been wise for Mr Nandlall to take heed of the aphorism that the first thing you should do when you are in a hole is to stop digging.

I believe that Mr Nandlall dreads having to confront the disclosure – which will come sooner rather than later – of the full extent of the unconstitutional and unauthorised expenditure between June 17 and December 31, 2014 which is likely to be considerably more than the $4.6 billion spent up to June 16.

His statement may also be an attempt to buy time for the government to spend billions of dollars during the period January to April 2015 using as the base the 2014 expenditure enlarged by unlawful expenditure.

Defying what is described as trite law, Mr Nandlall in this case argued that the doctrine of estoppel operates against the constitution and the law! Clearly not wishing to embarrass the office of Attorney General, the court graciously ignored the point.

Had such a mindless utterance derived from a junior attorney, he would have been laughed out of the court. That it should come from the country’s Attorney General is a measure of Guyana’s human resource tragedy.

As Attorney General, Mr Nandlall must be aware of the mechanisms available to him as the attorney for one of the parties. He should be availing himself of those rather than parading on the political stage.

Bacchus’ excursion avoids the real issues concerning Nandlall

Attorney-at-Law Murseline Bacchus (S/N November 27), to defend Attorney General, Anil Nandlall, against irresistible inferences of illegality from his infamous telephone conversation with Kaieteur News (KN) senior reporter, Mr. Leonard Gildarie, takes us back to a case 184 years ago in feudal England.

Mr. Bacchus was purportedly responding to a report in the Kaieteur News of Thursday November 6, 2014, under the caption “The world is watching police investigation – APNU”.

In the article, Mr. Joseph Harmon, an Opposition frontbencher and himself an attorney-at-law, raised concerns about the capacity and integrity of the authorities to undertake an independent investigation into the telephone conversation in which Mr. Nandlall objectified women; solicited for sexual purposes, on behalf of an uncle, a reporter of the newspaper; confessed to restraining the same uncle from taking serious criminal action against the newspaper proprietor; admitted to corruption involving public funds, drew attention to the increased activity against KN following the accusation by KN’s proprietor that his vehicle (Nandlall) was engaged in taking photographs of the newspaper building; declared knowledge of [an] impending armed attack[s] against the newspaper and its staff, and referred to a deal involving the President with the proprietor’s wife over a tax evasion matter.

This was, of course, the same conversation in which Nandlall boasted of his blood descent from the ancient Hindu warrior caste, Kshatriya, and encouraged Mr. Gildarie to leave his current employer and join the “elitist’ press unit being set up by the Government.
Continue reading Bacchus’ excursion avoids the real issues concerning Nandlall

Sad state of the judiciary

Introduction
Today I want to turn the spotlight on the country’s judiciary but before I do so I will briefly recap on four exchanges in the newspapers between the Office of the Attorney General and the Ministry of Legal Affairs through its Permanent Secretary, Ms. Indira Anandjit, and me.

In her second letter published on October 10 Ms. Anandjit outdoes her first on October 8 in terms of abuse, distortions and outright untruthful statements. But there was a twist. She resorted to accusing me of chauvinism, claiming, dishonestly, that I “insinuated” that she did not write the first letter of which she is yet to assert ownership. What I said is that “Mr Nandlall would shelter under the coattails of his Permanent Secretary from which to throw pebbles at me.”

Ms. Anandjit’s call for help in the name of chauvinism is equally dishonest. In my letter in the Stabroek News of October 7, critical of Anil Nandlall’s inaction on the Judicial Review Act, I did not mention her name or refer to her even once. Yet, responding in defence of Nandlall, she used the opportunity on October 8 to attack me by name eleven times. In my second letter on October 9, I mentioned her name peripherally two times. In her response on October 10, she continued her personal attack, referring to me by name eight times. Now, nineteen times against two hardly supports any genuine cri de Coeur of misogynistic victimhood.
Continue reading Sad state of the judiciary

Rules of Court for the Judicial Review Act were laid in parliament in 2010; onus is on Nandlall alone to make them operational

It was as predictable as night follows day that Mr Anil Nandlall’s Office of the Attorney General and the Ministry of Legal Affairs would justify the four-year delay in bringing the Judicial Review Act into operation with the excuse that this was dependent on the making of Rules of Court (‘The Judicial Review Act cannot be brought into force until new Rules of Court are promulgated’ SN, Oct 8).

It was even predictable that Mr Nandlall would shelter under the coattails of his Permanent Secretary, Ms Indira Anandjit, from which to throw pebbles at me. This is not unlike what he did in the case of the ceremony for the announcement of the launch of the bungled Laws of Guyana by him and his ministry for which he craves compliments.

Mr Nandlall’s appears incapable of any public discussion without resorting to ad hominem comments and attacks, however misguided. On this occasion, his ministry’s employee suggests that I may have read but not understood the provision of the Judicial Review Act regarding applications thereunder. He could not bring himself to think that in obtaining information for my letter on the four-year failure by the Ramson/ Nandlall team I would have informed myself of the facts regarding that Act and the Rules.

Mr Nandlall habitually looks for scapegoats to explain his increasingly exposed shortcomings and failures. On more than one occasion he has sought to blame the delay for the operationalising of the Judicial Review Act on the Rules Committee chaired by Chancellor (ag), Mr Carl Singh. It seems that neither Mr Nandlall nor his Permanent Secretary is aware that that those Rules duly signed by the members of the Rules Committee were laid in the National Assembly on November 18, 2010 as High Court Rules 2010 – No. 4 of 2010. In the National Assembly of which Mr Nandlall was a member, the Rules were described as “flawless” by Mr Ramson, the then Attorney General.

Having been laid in the National Assembly, those Rules were ready to become operational on the date of publication in the Gazette, or some later date provided. Mr Nandlall as Minister of Legal Affairs has executive responsibility for the administration of justice and it is in him and him alone that the power and duty vest to bring the Judicial Review Act into operation. Under the High Court Act the Attorney General, or his appointee, is a member of the Rules Committee, which he appears not to know! I must ask, is Mr Nandlall for real?

Even if the rules were still in draft as Mr Nandlall believes, he compounded his poor knowledge by attempting to hoodwink the public into believing that the Judicial Review Act can only be brought into force when the entire body of new Rules of Court is promulgated. And if his Permanent Secretary knew a little bit more than Mr Nandlall does about administration she would have told him that all that is required is for the justice administration to lift from the new rules the relevant Part 47 comprising three pages of twelve paragraphs and publish that part separately.

That is not unusual. There are several recent precedents for the making of subsidiary rules or legislation for specific legal purposes including:

– The rules establishing the Commercial Court and setting out the procedures for the operation of that court;

– The Practice Direction Rule establishing the Constitutional Division of the High Court; and

– The Family (Proceedings and Procedures) Rules 2012 comprising 130 pages. Parenthetically, Mr Nandlall or his Permanent Secretary may wish to explain honestly why more than two years after the publication of the Family (Proceedings and Procedures) Rules, and even longer after the completion of the building to house the Family Court, that court has still not been established.

It is not that Mr Nandlall thinks it is easier to bring up rules of 130 pages than it is rules of three pages; it is that he is afraid to bring the Judicial Review Act of 2010 into being because it would facilitate legal challenges to the executive’s excesses and breaches of administrative law. It would give to the High Court the power to grant aggrieved citizens injunctions and declarations more easily than are available under the current rules.

Finally, in my view Mr Nandlall has taken the administration of justice to its nadir. I truly hope for the sake of this country that it does not get worse, although with Mr Nandlall and Ms Anandjit I am not confident.

Nandlall is frustrating parliament’s decision by failing to bring the Judicial Review Act into operation

Please permit me to address briefly in your letter column two matters of public interest and touching on the administration of law in Guyana: the Deeds Registry and the Judicial Review Act, 2010.

On the Deeds Registry, it has been years since attorney-at-law and former Principal Officer, Deeds Registry Mr Leon O Rockliffe has been raising concerns about the state of the Deeds Registry, the statutory body that plays such an important role in protecting property rights in Guyana. His latest in SN on October 3, 2014 (‘Is the Deeds and Commercial Registries Authority a victim of the privatization process?) is the most plaintive yet. On each occasion, he has been ignored by the Minister of Legal Affairs, the legal profession and the other affected parties.

Editor, it may be that the media does not fully appreciate the grave implications of the deficiencies which Mr Rockliffe has tried to bring to the attention of the public. If it was not very serious I doubt that Mr Rockliffe would have persisted as he has. This is not a matter to be left to the letter columns of the newspapers; it deserves a full-scale investigative piece for which your reporter should interview Mr Rockliffe, the current Registrar of Deeds, the Attorney General and the President of the Guyana Bar Association, among others.

Secondly the Judicial Review Act which was passed in the National Assembly four years ago. On that occasion then Attorney General Mr Charles Ramson blew his trumpet about what he “personally wrote into the law” and how the Act testifies “to a system of transparency and accountability in the country”; Ms Clarissa Riehl described it as a “watershed moment” in that the Act avoided the need for persons to apply for prerogative writs and simply required an application for judicial review; and Khemraj Ramjattan praised the legislation for bringing to the citizenry “more armouries” against improper administrative action.

Mr Ramson had a full year to make the Order bringing the Act into force while Mr Nandlall has had another three. Both failed to do so. Ms Riehl meant well but she must now be wondering what has happened to that moment and Mr Ramjattan should be wondering too about the failure of his legal colleagues to deliver even a water gun, let alone armouries.

What Mr Nandlall is effectively doing is frustrating the decision of the Parliament by his failure to bring the Act into operation. A delay of four years is clearly intolerable and falls down on Mr Ramson’s promise “to bring the judicial process into the 21st century.”