Ministry of Legal Affairs

UN praises Guyana’s fight against corruption - The Chronicle Newspaper - 17th October, 2019

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Published: 17 October 2019

Left to right: Chief Parliamentary Counsel, Charles Fung-a-Fat SC CCH; UNODC Representative, Tanja Santucci; Attorney General and Minister of Legal Affairs, Basil Williams SC MP; UNODC Representative, Felipe Freitas Falconi; Parliamentary Counsel, Diane Woolford; and Attorney, Tevera Franklin 

THE Attorney General’s Chambers, Ministry of Legal Affairs, has reported that two representatives of the United Nations Office on Drugs and Crime (UNODC) in Vienna have praised the government’s fight against corruption.

According to a release from the chambers, Tanja Santucci and Felipe Freitas Falconi of UNODC extended their commendation to Guyana during a courtesy call to Attorney-General and Legal Affairs Minister, Basil Williams.

The delegation from the UNODC Secretariat was on a country visit for the review of Guyana’s ‘United Nations Convention against Corruption Draft Report’.
The release said Santucci noted that she was impressed with the volume of legislation that the Attorney General’s Chambers was able to pass in a short time and commended the attorney-general in this regard.

The UNODC official also noted that she was particularly impressed with the efforts taken by the attorney-general to ensure Guyana was removed from backlisting by the Financial Action Task Force.

“The attorney general noted that Anti-Corruption and Anti-Money Laundering may often overlap and the fight against both crimes is a priority for the government.  The attorney-general further noted that President Granger had given a high-level commitment to the Financial Action Task Force regarding Guyana’s position on combating money laundering.

He further noted that one of the anti-corruption measures taken was to sensitise and train public officials throughout Guyana in anti-corruption measures that must be observed in the performance of their duties within the public service. This is important as the government has zero tolerance for corruption. The attorney-general further noted that another measure taken was the strengthening of the legislative framework,” the release said.

During the visit, the UN officials, as well as representatives from Cuba and Vanuatu, met with several stakeholders at the Bank of Guyana’s boardroom to discuss Guyana’s implementation of articles on “Criminalisation and law enforcement” and “International cooperation” of the United Nations Convention against Corruption for the review cycle 2010 – 2015.

The team forms part of the United Nations Convention against Corruption Secretariat and the implementation review mechanism which covers 186 states.

‘ABUSE OF THE COURT’ - The Chronicle Newspaper - 17th October, 2019

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Published: 17 October 2019

Attorney General and Minister of Legal Affairs Basil Williams (Adrian Narine Photos )

Chief Justice throws out PPP application for Cabinet to resign
…deems action wholly misconceived, vexatious and an absolute abuse of the court

ACTING Chief Justice, Roxane George-Wiltshire, on Wednesday, threw out a Fixed Date Application (FDA) filed by People’s Progressive Party/Civic (PPP/C) Attorney-at-Law, Anil Nandlall, for an order, compelling Cabinet, including the President, to resign, deeming the case vexatious and an abuse of the court.

“This application is not only wholly misconceived, it is vexatious and an absolute abuse of the process of the court,” Justice George-Wiltshire said as she handed down the judgment in the High Court.

In the case brought against the Attorney General and Minister of Legal Affairs, Basil Williams, Nandlall sought three orders, among them an order compelling the Cabinet, including the President to resign on the basis that Government was defeated by way of a No-Confidence Motion in the National Assembly on December 21, 2018. This, he had argued, was in keeping with Article 106 (6) of the Constitution of Guyana. He had also sought a ‘mandatory order’ and a ‘conservatory order’ to restrain Cabinet, inclusive of the President, from meeting, making decisions, or performing the functions of Cabinet but no such orders were granted.

Upholding AG’s application
Instead, the Chief Justice upheld the Attorney General’s notice of application for the FDA to be struck out on the grounds that the FDA was an abuse of the process of the court. She explained that the No-Confidence Motion matter and its effects which included the resignation of Cabinet were ventilated at Guyana’s final appellate court – the Caribbean Court of Justice (CCJ), for which, the applicant was integrally involved.

The Chief Justice (ag) detailed that the CCJ, upon handing down the consequential orders on July 12, 2019, addressed the issue of the resignation of the President and Cabinet.
“It is important, however, that the Court makes this point.

In mandating that the Government shall remain in office notwithstanding its defeat and the resignation of the President and the Cabinet, Article 106 envisages that the tenure in office of the Cabinet, including the President, after the Government’s defeat, is on a different footing from that which existed prior to the vote of no confidence,” Justice George-Wiltshire said as she read an excerpt from the CCJ’s July 12, 2019 judgment.

In its deliberations, the CCJ said too that the Chancellor, Yonette Cummings-Edwards was correct in citing Canadian Constitutional Expert Peter Hogg, when she noted that: “…The government continues in office as a caretaker government or interim government until the next elections ensue and a President is appointed (or reappointed) depending on the results of that election.”

The Chief Justcie (ag) said given the pronouncement of the CCJ, there could not have been, and there cannot be any requirement for a mandatory order compelling Cabinet including the President to give effect to the resignation of the Cabinet, including the President.

“In any event, given that the issue was a live one before the CCJ, a court of first instance sitting as I am, cannot say that the CCJ omitted to make an order which a party or counsel for a party in the appeals thinks the Court should have made, more so, one that was actually sought; or that it somehow fell into error in its pronouncements or in its considerations of the effect thereof as the applicant as argued. This court is bound by the pronouncements and decision of the CCJ pursuant to the doctrine of stare decisis or doctrine of precedent,” Justice George-Wiltshire explained.

It was Nandlall who had said that the High Court should do what the CCJ ‘failed’ to do, and that was to issue the order compelling Cabinet to resign. According to him, the CCJ had fallen short in its ruling, but the Chief Justice (ag), on Wednesday, made it clear that the High Court is bound by the decisions of the CCJ.

Referencing to her pronouncements in the case of Ram v Chief Elections Officer, Commissioner of National Registration, GECOM and the AG, Justice George-Wiltshire iterated that the CCJ’s July 12 judgment should be read dispassionately and objectively. “While the applicant may be dissatisfied with the conclusion of the CCJ – he cannot seek to overturn or reinterpret it by filing an application such as this. The CCJ did not omit to pronounce on the issue as has been contended. On the contrary, the CCJ emphasised that it was making an important point in stating that the Cabinet including the President, and the Government are to act as a caretaker or interim government,” the Chief Justice (ag) clarified.

Application struck out; Nandlall to pay $500,000
It was on those grounds that the CCJ denied the application filed by Nandlall, who was present in the Court on Wednesday along with his Attorney Kamal Ramkarran. She emphasised that he was integrally involved in the hearing of the consolidated appeals before the CCJ. “The notice of application for the FDA to be struck out is granted as the FDA is an abuse of the process of the court with costs to the respondent in the sum of $500,000,” the Chief Justice (ag) said in her final words of her ruling.

Weighing on the matter prior to the ruling President David Granger was asked what would be his Government’s position should the court rule that Cabinet, including the President, should resign. He stated: “I don’t see the likelihood of that arising. The country cannot be without a government; the country cannot be without a President. Our interpretation of the Constitution is that I remain until another President is elected after the General Elections.”

He stated that the Government has complied with all orders of the CCJ and continues to serve in its interim capacity by abstaining from planning a 2019 Budget. “We are an interim administration and I’m observing those regulations but the country cannot be without a government and I cannot be removed unless elections are held,” he said.

Attorney-at-Law Anil Nandlall

The President has set March 2, 2020 for the holding of elections and has called on the parliamentary opposition to return to the House to grant an extension of the government for the purpose of holding elections. While the Opposition continues to refuse, the President Granger said that he is seeking in-house advice on a suitable way forward.

He stated: “The Leader of the Opposition has stated repeatedly and clearly that he has no intention of going back to the National Assembly. In any event, I have not prorogued the National Assembly; I’ve not dissolved Parliament and I am awaiting the advice of my Attorney General on a date for the dissolution of Parliament.”

The Head of State said that the government will also keep its options open so that in the case of a national or financial emergency the National Assembly can be convened to deal with the emergency. “In the final analysis, I will dissolve Parliament when the time comes but Parliament will remain in session…so, if it’s necessary, I can reconvene Parliament.”

Vexatious litigant

Meanwhile, outside of the High Court, the Attorney General, who was present in court with the Solicitor General Nigel Hawke, said he was pleased with the decision. “The decision of the Chief Justice has restored the position with the rule of law in Guyana, and it is a very important principle for a hierarchical system of courts that you follow precedence and the principle of stare decisis is that you follow the precedence set by the higher courts, and since the CCJ had already determined this issue…it was not fit nor proper and it was of no legal effect for you to come to the lowest court to seek to have that decision of the CCJ, the apex court, overturned,” Minister Williams said.

He said the courts have been exhibiting great patience, while again alluding to the fact that the matter was ventilated at the level of the CCJ. “Mr. Nandlall has to be careful that he does not become a vexatious litigant because he was part and parcel of the representation of the Leader of the Opposition at all levels – CCJ, Court of Appeal, High Court – and it was not fit for him, and right as an officer of the court to try to seek to come to the first instance judge and try to raise the same issue,” Minister Williams said, noting that the court should not be abused.

Nandlall disappointed, to file appeal
Nandlall, on the other hand, expressed his disappointment. He maintained that Article 106 (6) and (7) of the Constitution is clear, that the Cabinet inclusive of the President shall resign. “Here it is, we have approached the court, there is a Cabinet that is refusing to resign and the Constitutional Court of the country is telling us, that because the CCJ didn’t make that order, then forever we are in perpetual error. In other words, the doctrine of precedent and the doctrine of stare decisis are now superior to the Constitution of the country,” Nandlall told reporters. He has since promised to appeal the case.

AG urges swift hearing of challenge to non-residents on voters list - The Chronicle Newspaper - 1st October, 2019

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Published: 02 October 2019

…as GECOM revokes requirement for voters to verify registration

ATTORNEY-General Basil Williams has said that now that the Guyana Elections Commission has rescinded its order for persons to visit their offices to verify their identity before being placed on the voters’ list, it is incumbent upon the Court of Appeal to expeditiously hear the Administration’s challenge to the Chief Justice’s ruling that the removal of persons from the voters’ list is unconstitutional, and that residency was not a requirement to be on the voters list.
Attorney-General Williams has said that by virtue of Election Laws (Amendment) Act, 1991 Act No. 3 of 1991, the Legislature removed non-resident voting in Guyana, and that the Preliminary List of Electors should only include an Ambassador or High Commissioner; the wives and children of the Ambassador or High Commissioner; a member of staff of an embassy and their family in order to be registered as an elector.

On Monday, GECOM removed the necessity for every person whose name appears on the Preliminary List of Electors (PLE) to visit the registration office with their National Identification Card to verify their registration record. The move was intended to ensure that all eligible persons are included on the Official List of Electors (OLE). An Order Document on Monday stated that the previous National Registration (Residents) Order No. 70 of 2019, dated September 26, 2019 had been revoked. The new Order now only applies to all Guyanese citizens by birth, descent, naturalisation or registration, 18 years or older, or will attain the age of 18 by 31st December, 2019, and persons whose name appears on the Central Register in coming into operation of the Order.

NO OTHER CHANGE
No other details have been changed in comparison to the first Order issued by the Commission.
It remains that the period of Claims and Objections (C&O) for the upcoming elections will commence on October 1, 2019 and end on November 18, 2019.

The exercise provides eligible electors the opportunity to gain entry to the List of Electors, or make transfers, changes or objections to particulars in the Preliminary List of Electors (PLE). It is to be conducted following publication of the PLE at the registration offices/sub-office.
“Over the next few days, the Commission will set up temporary offices and mobiles countrywide to aid the efficient conduct of the exercise, and will publish the full list of those offices to ensure applicants or registrants can access the office within close proximity to them to have their transaction done,” the Commission had informed the public in a previous release.

The attorney-general, in appealing, in part, the decision of Chief Justice Roxane George-Wiltshire, had asked for an interim stay of execution of part of the judgment handed down by Justice George-Wiltshire on August 14, 2019 until the Fixed Date Application (FDA) is completely heard and a determination made.

He is maintaining that the Chief Justice erred when she ruled that it would be unconstitutional to remove persons from the National Register of Registrants, unless deceased or disqualified, pursuant to Article 159 (3) and (4).

OF NATIONAL IMPORTANCE
The AG noted that the issues in the matter touch and concern matters of national importance pertaining to general elections in Guyana, and the composition of the National Register of Registrants from which the Preliminary List of Electors is extracted.
He said that the only non-resident Guyanese that could be on the Register of Registrants are Ambassadors or High Commissioners, their wives and children and staff and their wives and children. All other non-resident Guyanese are excluded from the list. Williams said this underscores the requirement for residency during the qualifying period as contemplated by Article 159 of the Constitution.
He said, too, that under the principles of International Law, embassies, high commissions or consulate offices would be deemed to be the sovereign territory of Guyana and it would be as if the high commissioner or ambassador, family and staff would be voting in Guyana.
Additionally, he said that with the introduction of overseas voting in 1968, a reasonable inference is that residency in Guyana could not have been part of the 1980 Constitution as opposed to the 1966. The inclusion of residency in the 1970 Constitution was a clear oversight on the part of members of the Legislature, Williams has contended.

He said, too, that by virtue of Constitution (Amendment) No. 4 of 1991, the residency requirement for voting in Guyana was reinstituted, and became a necessary requirement. According to the Explanatory Memorandum for Constitutional (Amendment) Bill No. 36 of 1991 which was the Bill pertaining to Constitution (Amendment) No. 4 of 1991 prescribes: “The amendment to article 159 provides that from the 26th March, 1991, (the date when the Electoral Laws (Amendment) Act 1991, Act No. 3 of 1991, came into operation), a citizen of Guyana, who is not a diplomatic agent or member of staff of a diplomatic mission or the wife or child of such person, must be resident in Guyana in order to be qualified to be registered as an elector for elections.”

“We’re adhering to the Constitution’ - The Chronicle Newspaper - 30th September, 2019

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Published: 02 October 2019

Attorney-General Basil Williams and organisers of the meeting at the head table

…AG tells Guyanese in Canada as gov’t prepares to return to Parliament
…says move also in keeping with CCJ directive

ATTORNEY-General and Minister of Legal Affairs Basil Williams told Guyanese in Toronto over the weekend that the government will be returning to Parliament in October as directed by the Caribbean Court of Justice (CCJ) to seek an extension of the period to hold elections, and once again encouraged the Opposition to do the same, in compliance with the Constitution.

Attorney-General Williams was on a private visit to Toronto for his son’s admission to the Bar in Ontario, and took the opportunity to update Guyanese on recent developments in Guyana at a meeting in Scarborough, and via a live Radio Talk Show Programme on WTOR 770 AM Radio with popular host Richard Azeez Shuban.

Attorney-General Basil Williams and some of the Guyanese in Canada at the meeting 

The Attorney-General addressed a wide range of searching questions from those at the meeting and Radio Host Shuban. The issues raised included the recently announced elections date by President David Granger; oil-and-gas spill contingency plans; challenges of keeping a ‘coalition government’ together; the apparent failure to prosecute present and former corrupt officials; investigations into activities that occurred during a time referred to as ‘the troubles’, during which hundreds were murdered; efforts by the government to promote social cohesion to eradicate ethnical imbalance in the society; and investments in education, infrastructure and the hinterland communities.

“The President has announced that national and regional elections will be held on March 2, 2020, with or without the support of the Opposition in Parliament,” Attorney-General Williams reiterated. He explained that given the three months had passed since the no- confidence vote was taken because of court action, the government was required to seek an extension of the March 21 elections deadline, as stipulated by the Constitution with a two-thirds majority in parliament. The Caribbean Court of Justice, in its consequential orders, had also directed that the parties adhere to the constitutional requirements as they relate to the holding of elections following a no-confidence vote.

He said that in this regard, the government is operating within the Constitution and the directive of the CCJ by going back to Parliament on October 10 to seek that extension. “The Opposition in Parliament will have to support that extension to achieve the two-thirds majority, and if we don’t get it, President Granger will then proclaim March 2 as the date for elections and dissolve parliament under the Doctrine of Necessity,” Minister Williams explained. Necessity is a common-law doctrine which can be used in Commonwealth countries to justify action in these circumstances.

“The President has gone ahead and announced March 2 as the elections date, and if the Opposition does not show up, he will proceed to do what he has to do,’ Minister Williams said. Opposition Leader Bharrat Jagdeo has repeatedly said the Opposition will not return to Parliament to facilitate an extension of the March 21 deadline.

OIL AND GAS
In addressing points of interest among Guyanese in Toronto, Attorney-General Williams assured his audience that the ‘Coalition Government’ is developing an oil- spill contingency plan, and the Department of Energy (DoE) is doing a lot of work to put the necessary policies and programmes in place to successfully manage the oil-and-gas sector. On the prosecution of corrupt officials, the Attorney-General admitted that they are facing challenges in gathering evidence to successfully prosecute these cases. “In many of these cases, persons within the system have destroyed evidence,” he said, adding: “We are, however, not allowing this to defeat our efforts to bring these people to justice. In these circumstances, it takes time, and that is why we are asking for another mandate to deliver on these promises and other initiatives to provide a good life for all Guyanese.”

‘THE TROUBLES’
He promised that the ‘Coalition Government’ will be investigating ‘The Troubles’, a period during which many young people lost their lives, but reminded his audience that there is a huge amount of work to be done after 23 years of lawless government under the PPP, and that th present admi8nistration has only been in government for four years. “We have achieved a great deal in four short years,” the Attorney-General pointed out. 

A section of the audience at the meeting in Scarborough

“We have invested over $170B in education, and huge amounts in infrastructure, and to develop the hinterland and Indigenous communities,” he said. “And we are not discriminating in where we make these investments. For instance, in Wakenaam and Leguan Islands in Essequibo, areas that traditionally vote for the Opposition, we have been building new roads. These areas have been neglected for 23 years.”

The Attorney-General, in response to a question on the radio show about efforts by the ‘Coalition Government’ to break the ethnic divide in Guyana, said that the PNCR, the largest partner in the six-party coalition has always encouraged diversity in its ranks. He reminded the host that there was even a time when former president, Desmond Hoyte was referred to as “Desmond Persaud”, due entirely to his efforts at encouraging ethnic diversity in the party.

“We have done a lot of work in four short years to ensure we have a safe society and a good life for Guyanese, despite huge challenges,” he said. “People on the ground are already seeing the results of our efforts.” Calls to the radio station in response to the interview pointed to the positive developments in communities in Berbice and Bartica under the ‘Coalition Government’. One caller said that she is from Bartica, and that that community has been transformed for the better under the ‘Coalition Government’.

Attorney-General Williams said that because of the work they have done, he is confident the ‘Coalition Government’ will be returned to power, and they will be able to continue the work to provide a just, fair and wealthy society for all.

AG’s Chambers rejects Bar Association’s statements on legality of government - The Chronicle Newspaper - 22nd September, 2019

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Published: 27 September 2019

THE Attorney General’s Chambers, on Saturday, rejected a statement from the Bar Council of the Bar Association of Guyana which said government was operating outside of the law and called the contention “fake and malicious.”

The statements were published in the Stabroek News and in other media outlets. According to the statement from the Attorney General’s Chambers
an excerpt of the Bar Association’s statement reads thus, “The constitutional duty and responsibility of the President was to fix a date for elections within the three-month period set out in the Constitution in the absence of a Parliamentary extension of that period, which extension the Bar Council notes was not sought and or obtained before the period expired.
“The constitutional duty and responsibility of the Guyana Elections Commission was to be ready to administer and supervise elections within the time encompassed by the three-month period so as to comply with the Constitution.
“By failing to abide by the clear and unambiguous terms of the Constitution, the Government of Guyana has abdicated its responsibility, violated the Constitution, is operating outside of the rule of law and in breach of internationally recognised standards of democracy.”

According to the AG’s statement, the Bar Council of the Guyana Bar Association must keep the profession noble.
“As Head of the Bar of Guyana, The Attorney General exhorts the GBA to be guided by the aphorism, ‘Ours is a higher and perpetual retainer’ for Justice,” the AG’s Chambers admonished in its statement. “The Guyana Bar Association (GBA) is expected to be independent and like Caesar’s wife – above reproach,” said the AG Chambers.
The AG’s statement said that the Bar Association is not expected to be the “minion” of any political party or grouping, or to mindlessly parrot its utterances.

“Above all, the GBA is expected to disseminate accurately the decisions of our Courts, more so our Apex Court– the Caribbean Court of Justice (CCJ). The GBA’s Bar Council has falsely stated, in its recent statement published in the Stabroek News and other media, that the ‘Government of Guyana is operating outside the Rule of Law ….’ The Government of Guyana rejects this contention as being false and malicious, as it cannot be supported by the Bar Council’s recourse to the Constitution and/or the decision of the Caribbean Court of Justice,” said the statement from the AG’s Chambers.

The AG Chambers said that in respect of the Constitution, neither articles 106(6) or 106(7) provides for the President to fix a date for elections within a three month period.
“In fact, the CCJ recognized that it was for GECOM, not the government, to hold elections within the three months provided by article 106 (7) or such longer period approved by a two-thirds majority of Parliament,” the AG statement said.

The AG Chambers said that in the case of the CCJ, the Court frontally rejected the consequential orders sought by Counsel for the Leader of the Opposition including that, “The President shall by proclamation appoint a date for the holding of elections no later than 18th September, 2019 and that “The Government shall remain in Office and shall hold an election for the members of the National Assembly within three months of 18th June, 2018 i.e by 18th September, 2019.

The AG Chambers noted that the CCJ in rejecting the aforesaid consequential orders and others said,-

“Article 106 of the Constitution invests in the President and the National Assembly (and implicitly in GECOM), responsibilities that impact on the precise timing of the elections which must be held. It would not, therefore, be right for the Court, by the issuance of coercive orders or detailed directives, to presume to instruct these bodies on how they must act and thereby preempt the performance by them of their constitutional responsibilities. It is not, for example, the role of the Court to establish a date on or by which the elections must be held, or to lay down timelines and deadlines that, in principle, are the preserve of political actors guided by constitutional imperatives. The Court must assume that these bodies and personages will exercise their responsibilities with integrity…”
The statement said that at the CCJ hearing, Counsel for the Attorney General of Guyana, Mr. Eamon Courtenay SC, had ably argued that if the Opposition did not agree to the two-thirds majority extension, then, by necessity, it would fall to the President, who has the remit under the Constitution, to both dissolve Parliament and proclaim a date for the elections after being advised by GECOM as to its readiness to deliver credible elections.