In Mr. Gaskin’s case, a constitutional challenge seems warranted

Nov 21, 2019 Letters

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Dear Editor,

Ramon Gaskin reminds me, somewhat, of the Englishman Raymond Blackburn. Mr. Blackburn had a reputation for challenging (in person) public bodies, even the British government, so much so that Lord Denning M.R. described his litigatious dispensation as “showing eternal vigilance with the law”. I notice that Mr. Gaskin has, now, albeit belatedly, raised, publicly, some concerns about the delay in his court constitutional challenge to the State Assets Recovery Act, 2017 [‘Two years later……….Ruling on constitutionality of SARA, Act still on hold” KN, Tuesday, November 12, 2019 at page 8] Below, I argue for a challenge to the unconstitutionality of that delay itself.
First of all, a ground for such a challenge would be the serious public injustice caused by this plainly excessive, inordinate and unreasonable delay. (preoccupation with NCM litigations did not begin until January 2019). In this matter the Director of SARA is the custodian of the public interest and justice. In October, I wrote a letter about this matter by which I had hoped to stir public activism, particularly, by the “Watchdog” Guyana Bar Association. Nothing has happened. (En passant, I mention the case of Meerabux (George) v. Attorney General (2005) 66 WIR 113 (PC) in which the Bar Association of Belize was complainant against a Judge for misbehavior). To be clear, my argument here is not, of course, for some discipline of the delaying judge; only delivery of that delayed decision. I quote some extracts from my October letter viz “The APNU+AFC Government’s response to the mischief of the serious corruption in respect of divestment of state lands and other assets was the enactment of the State Assets Recovery Act, 2017………Court recovery proceedings against GBTI and QAII……..cannot proceed because the Gaskin challenge is still undecided……. In an indirect way Gaskin’s challenge touches and concerns BILLIONS of DOLLARS” (“Judges are concerned only with validity of legislation” GC 2019-10-17, “Silence on this matter is not an option for the Guyana Bar Association” KN 2019-10-19, the last emphasis now added).My essential point is the public detriment and injustice suffered as a consequence of the delay in his challenge. Converted into dollars (and intangible political benefits of the public’s opprobriumfor the corrupt aside) the delay is worth billions of dollars of forensically investigated,potentially, recoverable assets.
Secondly, the Caribbean Court of Justice (CCJ) has spoken, poignantly, and decisively, on this question of judicial delay in the Guyanese case of Bridgelall v. Hariprashad (2017) 90 WIR 300. That case involved, inter alia, a delay of some six (6) years mostly in the Full Court and Court of Appeal. It was about, inter alia, article 144(1) of the Constitution,which confers on a person charged with a criminal offence the fundamental right to a fair trial within a reasonable time. But there can be no doubt, or argument, whatsoever, that the principle of that Bridgelall case is equally applicable to the present Gaskin delayed-decision case which involves a consideration of the fundamental right under article 144 (8) to, in a civil matter, (which the Gaskin litigation is) be “……given a fair hearing WITHIN A REASONABLE TIME”. The CCJ said, relevantly, in its ruling viz “The simple truth is that ……….excessive delays are tolerated because there is now a culture of complacency within the system towards delay….when apex courts evince a firm position of intolerance towards this culture the necessary measures are invariably introduced to enable and facilitate the reduction, if not elimination of unnecessary delay. In all the circumstances we find here and declare that the STATE HAS BREACHED Bridgelall’s constitutional right to a fair hearing WITHIN A REASONABLE TIME. ………..,” (see (2017) 90 WIR 300 at page 336 para [40]-[41] all emphasis supplied by me]. In my considered view, the circumstances of the Gaskin case, provides ample and sufficient grounds for a challenge, and ruling, as happened in Bridgelall. Has the learned court, unintionally, forgotten this case amidst the burden of the workload of that court? In the circumstances of this matter and avoiding austerity of tabulated legalism, the Director as an interested party, is entitled to assert, that the breach or contravention of article 144(8) caused by the delay has been, is being, and is likely to continue in relation to him, as with Mr. Gaskin, and accordingly is also entitled to the beneficial enjoyment of the fundamental right under article 144(8).
Third, and finally, I mention briefly Parliament’s intolerance and opprobrium for unnecessary delay as is evidenced by the Time Limit for Judicial Decision, Act, Cap. 3:13 (TLJDA). I had made passing reference to the TLJDA in my letter of October 17/19 ibid. On one possible view, the TLJDA by specifically stringently providing for a time limit for decisions in civil cases of “not later than one hundred and twenty days from the date of conclusion of the hearing” has given specificity to the generality of the wording of article 144 (8). What the framers of the Constitution said in general terms, Parliament has said, with specific, particular language. The Judiciary must be guided accordingly.
I end with this: delay in this matter benefits the few who has been unjustly enriched with recoverable assets; it burdens and aggrieves the many. If when decision is delivered, Gaskin succeeds then, surely, I anticipate there must be appeals(s). This involves further time (perhaps years). The longer the Director’s applications for civil recovery orders languishes in the courts, injustice (including but not limited to the Director) looms larger. If Mr. Gaskin (for whom I hold no brief) as a vigilantor, is really vexed and aggrieved by the two years plus delay, a constitutional challenge, seems warranted, advisable, and certainly supportable by CCJ case law.

Regards,
………………….
Maxwell .E. Edwards

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