CONSTITUTIONAL HERESY: The Judiciary being painted green

Jul 12, 2019 Letters

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DEAR EDITOR,

The intervention by President David Granger, purportedly acting under Article 188 (1)(b) of the Constitution of Guyana, granting to the Minister of Finance, “Respite until all appeals and remedies available to the Minister of Finance and the State have been exhausted”, while the Minister is still before the Judiciary in pending legal proceedings, strikes at the heart of constitutional governance, the doctrine of separation of powers and the rule of law. In short, the President is shaking at the very foundation upon which the edifice of civil society in Guyana rests.
Article 188 (1) (b) of the Constitution provides:
188. (1) The President may-
(b) grant to any person a respite, either indefinite, or for a specific period, of the execution of any punishment imposed on that person for such an offence.
It therefore cannot be doubted that the President has a power to grant a respite to any person, in respect of the execution of any penalty imposed on that person, for the commission of an offence. Neither is it disputed that contempt of court, for which the Minister is found guilty, is an “offence” contemplated by the constitutional provision. The quintessential question is: when and in what circumstances can the President invoke this Article of the Constitution and lawfully exercise the powers conferred therein?
Answering this question, necessarily involves an examination of the history, nature and purport of the power that the President enjoys under Article 188. The Constitution itself offers initiating assistance. The marginal note to Article 188 reads, “Prerogative of Mercy”.
This indicates that the power conferred upon the President therein is a relic of the Royal Prerogative, now codified in the Constitution. Like powers, similarly codified, find expression in constitutional provisions throughout the Commonwealth, as well as in the United States of America. Therefore, Guyana’s Constitution is not unique, in this regard.
Like all prerogative powers, this power, once properly exercised, is immunized from Judicial Review and cannot be questioned in a court of law. A rationale for the retention of this anachronistic power in contemporary Constitutions was elegantly enunciated by Pathak C.J., in dealing with a similar power conferred upon the President, under Article 72 of the Constitution of the Union of India:
“To any civilized society, there can be no attributes more important than the life and personal liberty of its members that is evident from the paramount position given by the courts to Article 21 of the Constitution… the fallibility of human judgement being undeniable even in the most trained mind, a mind resourced by a harvest of experience, it has been considered appropriate that in the matter of life and personal liberty, the protection should be extended by entrusting power further to some high authority to scrutinize the validity of the threatened denial of life or the threatened denial of personal liberty. The power so entrusted is a power belonging to the people and reposed in the highest dignitary of the state…” (Kehar Singh v Union of India (1998) 1 SCC 204).
Undoubtedly, a power premised upon such high ideals must be exercised with great circumspection and care, as another jurist admonishes:
“…But the fact remains that higher the power, the more cautious would be its exercise… It cannot be doubted as a proposition of law that where a power is vested in a very high authority, it must be presumed that the said authority would act properly carefully after an objective consideration of all the aspects of the matter” (Fazal Ali, J. in Maru Ram v Union of India (1981) 1 SCC 107).
The prescription that such a power must be exercised with profound judiciousness, stems from the fact that the very Constitution that confers it, concomitantly, ascribes all forms of litigation to the exclusive functional domain of the Judiciary for their conclusive determination and, impenetrably insulates that very Judiciary from all forms of Executive interference.
It is this separation of powers that Maddison C.J., of the United States, held as “so essential to the preservation of liberty”. It is inconceivable that the framers of the Constitution will so formidably endow the Judiciary and at the same time, reside the Executive with a power to so easily undermine it. Such a state of affairs would render the concept of judicial independence an oxymoron.
It is against this constitutional mosaic that the President’s actions must be examined. It is imperative to reiterate that a monetary judgement was obtained against the State in October 2015 (while the Coalition Government was in Office). Attempts to challenge this judgement were exhausted by proceedings culminating at the nation’s apex court, the Caribbean Court of Justice.
Legal proceedings then commenced in the High Court to enforce this judgement. An order was obtained under the State’s Liabilities and Proceedings Act, compelling the Minister of Finance to pay the judgement. This order was served on the Minister to no avail. Contempt of court proceedings were then launched, seeking to commit the Minister to prison, unless he pays the judgement, within a specified time. Again, the Minister refused to pay.
Before the expiration of the time, delimited by this order, the Minister appeals this order to the Full Court and seeks a stay of its execution. The application for the stay of execution was dismissed by the Full Court. An application was then filed to the Court of Appeal seeking leave to appeal the Full Court’s decision.
While this application is pending in the Court of Appeal and before the time granted to the Minister to pay the monies expired and imprisonment kicks in, the Attorney General, who has been representing (or misrepresenting) the Minister of Finance in all these proceedings, then runs to the President and advises him to exercise the powers conferred by Article 188 (1)(b) of the Constitution.
I respectfully submit, that the intervention of the President in this factual matrix can never amount to a proper and lawful exercise of the powers conferred by Article 188 (1)(b) of the Constitution. All the authorities uniformly say, that the exercise of this power is based upon mercy, hence the marginal note to Article 188 reads “Prerogative of Mercy”.
In ex parte Grossman (1924) 267 US 87, the District Court of Illinois stated that the object of the pardoning power is to correct “possible judicial errors”, to relieve a convict from a sentence which is “mistaken, harsh or disproportionate” to the crime. It is not to protect a political compatriot, or defeat a just and lawful judgement obtained by the citizenry against the State. Indeed, none of the objective factors which would justify the exercise of this power is present in this case.
Most significantly, by its very nature, a prerogative power can never be lawfully exercised, while the matter is actively before the Judiciary. To do so, will constitute a most colossal trespass by the Executive upon the province of the Judiciary and amount to a crude violation of the doctrine of separation of powers.
A prerogative power is only exercisable after the judicial process is completely exhausted. As the Privy Council so frequently reminds us in the death penalty cases, “mercy begins where legal rights end” [See De Freitas v Benny (1976) Appeal cases 239 at 247].
In the current circumstances, so oblivious is the President and his legal adviser to the constitutional transgressions committed, that the edict issued by the President states, ex facie, that the respite granted is “until all appeals and remedies available to the Minister of Finance and the State, have been exhausted.”
So, the Executive invades the territorial enclave of the Judiciary in a pending legal process and grants to one of its officers, a litigant in the ongoing legal contest, the very remedies which the Judiciary has, thus far, denied this litigant.
Under the doctrine of Separation of Powers, this is not only a trespass by the Executive upon the functional responsibilities of the Judiciary, but also a usurpation of it. That this is constitutional heresy of multitudinous dimensions, is an understatement.
An essay of this type simply lacks the scope to fully expound the multiplicity of constitutional desecrations committed. Suffice it to say, that this will stand out as one of the most vulgar and egregious violations of the Constitution and the Separation of Powers committed in the Commonwealth in recent times. The uneducated verbiage from Prime Minister, Moses Nagamootoo, of and concerning the Judge, completes the unprecedented venomous attack upon the Judiciary by an unhinged Executive.
Before I close, constitutionality aside, I invite you to consider the implications of the precedent set by the President, in relation to litigation involving the Government and those close to the President. What assurance do you have that the President will not parachute into the litigation, to assist his allies against whom you may have litigation when they appear to be on the losing end? Similarly, how can the President’s actions inspire confidence in those whom the State owes financial debts? What now, is the true collateral value, if any, of the “Government’s Guarantee” of the thirty billion dollars loaned by commercial banks to GuySuCo?
I can go on, but let those few inquiries titillate your mind for the time. Unless restrained, the Judicial edifices will soon be painted in green and the PNC flag will be restored to the compound of the Guyana Court of Appeal.
Mohabir Anil Nandlall, MP
Attorney-at-Law

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