Ministry of Legal Affairs

GPA selective in judgement - The Chronicle Newspaper - 14th April, 2019

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Published: 15 April 2019

Dear Editor,
THE attorney general (AG) and minister of legal affairs refers to the headline in Stabroek News dated Thursday, 21st March, 2019: ‘Press Association calling on AG to apologise for attack on Stabroek News.’

The AG refutes the allegation of the Guyana Press Association (GPA) that he attacked the Stabroek News. The AG recognises the significant role that the press plays in a democratic society. Therefore, whether their reports are favourable to the government or not, they are integral to the democratic process that enables our citizens to be informed and become active participants in society. However, while recognising the role of the media, the AG strongly condemns the peddling of false information by the media that seeks to besmirch the characters of persons and communicate anything other than the truth to the Guyanese people.

This conduct is unethical and should be called out by all who stand for the truth. The AG notes the threat by the Guyana Press Association to boycott any press-related event held by him.

Attorney General and Minister of Legal Affairs has Qualified Privilege
The AG did not attack the Stabroek News as asserted by the GPA, but rather was responding to attacks on his character and the work of the Attorney General’s Chambers and Ministry of Legal Affairs. The GPA’s letter failed to disclose that the AG’s response to Stabroek News was in response to the publication by the Stabroek News of a letter written by Clement Rohee, titled: “Judge exercised enormous amount of patience with Mr Williams” dated Monday, February 25, 2019 and other articles libelling the AG for instance, “Solicitor General Resigns” dated Thursday, February 21, 2019; “Jagdeo laments sloth in hearing of no-confidence appeals,” dated Monday, February 25, 2019; and “Hearing of AG’s confidence ruling stay applications set for Thursday,” dated Tuesday, February 26, 2019. The GPA was also silent on these articles and the untruth they contained.

By law, the AG has qualified privilege to respond to any reports or articles about him and about the Attorney General’s Chambers and Ministry of Legal Affairs. The defence of qualified privilege permits persons in positions of authority  to repel statements that would be considered slanderous and libellous. He has the right to defend his personal reputation, as well as the office of the Attorney General and Minister of Legal Affairs.

Attorney General and Minister of Legal Affairs should not be prevented from disseminating information
Additionally, in accordance with Article 146(1) of the Constitution, the AG has the right to disseminate information to the Guyanese people. This Article states, “Except with his or her own consent, no person shall be hindered in the enjoyment of his or her freedom of expression, that is to say, freedom to hold opinions without interference, freedom to communicate ideas and information without interference and freedom from interference with his or her correspondence.”

Since coming into office, the AG has taken a strong stand against corruption and for combatting-money laundering, countering the financing of terrorism and countering the financing of the weapons of mass destruction and other transnational crimes. Many laws have been passed in this regard and seminars were held countrywide. This is in line with the policy objectives of the government and the AG has been able, together with his team to remove Guyana from blacklisting by the Financial Action Task Force (FATF), Caribbean Financial Action Task Force (CFATF) and the Delegation of the European Union (EU).
Accordingly, a boycott of the AG’s work will prevent this information which demonstrates the zero tolerance policy of the government against corruption, money laundering, countering the financing of terrorism and countering the financing of weapons of mass destruction and other transnational crimes from reaching the Guyanese people. Furthermore, a boycott of the AG’s work is a boycott of the government.

Press Association’s failure to Reprimand Stabroek News for unethical conduct
The AG also takes note of the fact that the Guyana Press Association did not reprimand the Stabroek News for its libellous headline and story, namely, “Solicitor General Resigns” dated Thursday, 21st February, 2019. One of the objectives of the GPA as detailed in their constitution is “(iii) To encourage and foster the observance of high professional standards by its members and to establish and prescribe such standards.” Moreover, in paragraph 22 of the constitution of the Guyana Press Association, the ‘Declaration of Principles and the Conduct of Journalists’ is set out. The principles are, “Proclaimed as a standard of professional conduct for journalists engaged in the gathering, presenting, disseminating and commenting on news and information and in describing events.” These principles speak of respect for the truth, the need to present the public with the truth and honest collection and publication of the news.

However, Stabroek News (SN) failed sorely in this regard by hastily and without verification publishing that the solicitor-general had resigned, which was contrary to the truth. The SN did not deem it fit to fact check and solicit a comment from the solicitor-general, the permanent secretary or the AG. Instead, when threatened with a lawsuit for libel, they offered what can only be deemed as a backhanded apology to the solicitor-general.
Despite their breach of the Declaration of Principles and Conduct of Journalists stated in the GPA constitution, the GPA did not in keeping with their objective of promoting high professional standards call out the Stabroek News for its report. The GPA was also silent on the following articles in the Stabroek News and the untruth they contained, namely “Judge exercised enormous amount of patience with Mr Williams” by Clement Rohee, and other articles libelling the AG for instance, the articles “Hearing of AG’s confidence ruling stay applications set for Thursday” dated Tuesday, February 26, 2019, and “Jagdeo laments sloth in hearing of no-confidence appeals,” dated Monday, February 25, 2019.

Whether GPA has the remit to seek an apology on Stabroek News behalf?

The request by the GPA for an apology on behalf of Stabroek News raises the question whether this is within their remit. The GPA constitution does not offer any clarity on the matter. However, it is of concern that the GPA would request such an apology when Stabroek News itself never officially or personally in any correspondence requested an apology, especially since the GPA may not be privy to detailed information or circumstances surrounding this issue. The words to which the GPA purportedly took umbrage were used in a context that could not amount to any vituperation. On the other hand, it appears that the GPA has no problem with an article appearing in the Kaiteur News on page 9 of the Monday, 6th March, 2019 edition, captioned: ‘Guyana is getting shafted.’ It is not my intention to interpret the connotation of this phrase, but it is not difficult to convince a person that the GPA is selective in its judgment or elective in these circumstances and clearly demonstrates a manifestation of bias.

History of relations with Stabroek News and Prime News
In any event, the proposal of a boycott of the AG in their publications is puerile. The Stabroek News and Prime News do not give any media coverage to the AG, save and except for unfavourable coverage. For instance, they have never referred to the attorney general in his capacity as chairman of CFATF. Only last week, in reporting on the United States State Department’s International Narcotics Control Strategy Report in their paper, they failed to attribute any of Guyana’s successes to the attorney general.
The GPA must see its remit as being that of a higher and perpetual retainer engendering sound and professional conduct on behalf of its members.

Regards,
Attorney General’s Chambers and
Ministry of Legal Affairs

KN article represents misinformed view of AG Chambers - The Chronicle Newspaper - 8th April, 2019

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Published: 08 April 2019

I REFER to an article featured in the Tuesday, April 2nd, 2019 edition of the Kaieteur News, titled: “AG’s Chambers lacks expertise to fine tune oil laws.” The Attorney General’s Chambers and Ministry of Legal Affairs is of the view that this headline and the contents of the article represent a misinformed view of the role of the Drafting Division of the Attorney General’s Chambers.  However, not only is this view misinformed, but it seeks to diminish the work of a division, though short-staffed, drafts the laws of the land under immense pressure and time constraints. Therefore, permit the Chambers to clarify their important functions.

The persons who draft the laws of this country are lawyers admitted to practise in Guyana and because of their unique role, they are known as parliamentary counsel. These lawyers have various years of experience, ranging from over 30 years to one year. Some possess the LLM in Legislative Drafting and others are currently engaged in post-graduate studies in legislative drafting. Further, all staff of the Drafting Division have received training in other areas of the law: for example, anti-money laundering and countering terrorism financing and proliferation financing, nuclear and chemical weapons, cybercrime, Hague Conventions, intellectual property, anti-corruption, human rights and law revision.

The lawyers of the Drafting Division are responsible for translating the government’s policy into legislation. Through the drafting of laws they give effect to the constitutional, political, social and economic goals and aspirations of the government. Additionally, they ensure that the draft is constitutionally sound, complies with fundamental legal principles, does not repeal existing laws, is workable and effective and is in a form acceptable to Parliament. Further, when requested, they offer legal advice on laws, contracts and international agreements and contracts (e.g. IDB, UN and CARICOM). In essence, they are the government’s advisers with respect to legislation. They also coordinate and facilitate consultations on draft bills, laws and nationwide seminars on Anti-Corruption and Anti-Money Laundering and Countering the Financing of Terrorism.

Particularly because of the nature of the job of the parliamentary counsel, the only expertise required is that of legislative drafting.  Therefore, they can draft any legislation that is required by the government and this is what they have been doing since the division was established.  One can be an expert in a particular field of law, but if that person does not possess the skill to draft, then he/she is not suitable to be a legislative drafter.  This is what distinguishes the parliamentary counsel from all other lawyers.  It is impossible for the parliamentary counsel to be specialist in all the areas of law that the government will require legislation. However, what the lawyers of the Drafting Division do possess are the skills required to give effect to the government’s policies. These are the skills that another lawyer who has the expertise, for example in oil and gas law, does not possess, since drafting is a skill that is developed over time.

It must be stated that drafts done by consultants/experts are oftentimes not in a form fit for Parliament and the parliamentary counsel has to engage in a process of dismantling the draft and reworking it to ensure it is fit for purpose. This simply means that being an expert is not synonymous with being a drafter. It is at this juncture that one can see the measure of the magnitude of our drafting expertise. The final product is always that of the Chambers as consultants are often too far removed from the realities of what is needed. Against this backdrop, persons should be careful about making disparaging and reckless remarks about the expertise that the Drafting Division possesses.

The author of our disparagement should be careful of his remarks. His arrangement in relation to oil and gas covers vast tracks of space and time, but he has committed an error by arrogating to himself, knowledge of which he is denuded.  Perhaps it would be apt to mention the Constitutional Reform Commission Bill drafted by a consultant, guided by a Steering Committee and sent to this Chambers.  The Bill had to be salvaged by the Chambers, because of a lack of knowledge by the consultant, and his failing to take into consideration certain key aspects of the laws of Guyana.

It is important to also note that drafters do not usurp the role of the government. It is the government and the respective ministries and departments that should have the requisite specialisation in the policy area that requires legislation.  Moreover, drafters do not work in a vacuum, but rather work along with the experts or consultants employed by the relevant ministry or department who is there to serve as the instructing officer. Also, we have worked with oil and gas experts from the Commonwealth and in other areas of the law with experts from the International Senior Lawyers Project (ISLP). Therefore, if the government wishes to have laws dealing with oil and gas, then it is the government who must ensure that they have the requisite experts to formulate what is known as drafting instructions.

This expert is the one responsible for explaining the aims of the legislative proposal to the drafter, give the drafter the requisite information to help the drafter to compose a product that is legally effective and responds to the policy, and make decisions on issues arising during the drafting. These instructions the drafters will use to guide them in drafting the law with clarity and precision, thus giving effect to the legislative aspirations of the government.

As noted by the late renowned legislative drafter, Professor V.C.R.A.C Crabbe, “Parliamentary Counsel must have some basic knowledge of indeed every subject matter.  They supplement their basic knowledge with research.  Their industry and discipline help them to ask the right questions.  In the end, Parliamentary Counsel becomes Jacks of all trades and masters in legislative drafting.”
In conclusion, there is no challenge that the Drafting Division cannot handle

Regards
Attorney General’s Chambers

Press Release - 21st February , 2019 - Erroneous media Reporting of No Confidence Motion in the Court of Appeal.

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Published: 25 February 2019

In an attempt to correct the misinformation being peddled in various sections of the media as it relates to yesterday’s standstill of the appeal for a stay of execution, in the Court of Appeal the Attorney General's Chambers and Ministry of Legal Affairs wishes to unequivocally state the facts.

A Notice of Appeal was initially filed on February 5, 2019 on behalf of the Appellant, the Attorney General challenging the Chief Justice’s ruling on January 31st, 2019 in both FDAs No. 22 and 29.

Consequently, the parties were invited settle the records of appeal on February 15, 2019. During the course of settling the records of appeal some clerical errors were recognized and the judge was subsequently informed. This session was attended by the State Solicitor and lawyers representing the interest of the other parties.

Attorney at Law, Mr. Anil Nandlall who is representing, the Leader of the Opposition noticed that his client’s name was inadvertently omitted from the rubric of the initial Notice of Appeal.

At this juncture, the State Solicitor committed to amend the omission on the rubric and it was agreed by all the parties present that the Notice of Appeal would be amended, to now reflect the inclusion of the Leader of the Opposition and served on all parties. All parties noted that it was a mere inadvertent clerical error and should not adversely affect the hearing of the matter.  

As was instructed, the State Solicitor amended the Notice of Appeal in accordance with  Order 2 rule 6 (1) (b) and this was filed and served on Monday, February 18th, 2019 ahead of Wednesday’s hearing before Justice of Appeal, Mr. Rishi Persaud. 

It is quite appalling that the media would characterize an inadvertent slip as an array of glaring errors.

Further, it is crucial that the media operatives should exercise some degree of due regard and caution when reporting matters of this magnitude.

The matters have been filed and the appellant anticipates a hearing date for the said matters in the coming week. 

Solicitor General never resigned - The Chronicle Newspaper - 22nd February, 2019

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Published: 22 February 2019

Solicitor General Nigel Hawke (Adrian Narine photo)

– tells SN to issue retraction and apology for falsity

SOLICITOR General Nigel Hawke has called on the Stabroek News to recant and issue a public apology regarding its false article that he resigned, with immediate effect, on Wednesday, February 20, 2019, following the Court Appeal matter regarding the no-confidence motion.

The article in question was published in the newspaper’s Thursday, February 21, 2019 edition and titled: ‘Solicitor General Resigns’.

Although the Stabroek newspaper hinged its report on being “reliably informed”, Hawke confirmed to the Chronicle Newspaper yesterday (Thursday, February 21) that the report was both misguided and void of the truth.

“When I saw the article, I was taken aback because I knew, for a fact, that there was no resignation and the first thought that came to me is how would we have sunken so low. The first and carnal rule of journalism is simply [where] they could have confirmed from me and if not me, the better place to confirm was the Permanent Secretary of the Ministry as to whether she’s in receipt of a resignation,” he said.

His disappointment expressed in the newspaper’s ethics and standards was coupled with his regret that the viral story caused his family much worry.

“This thing has caused much trepidation to my family. It’s gone viral; people calling me: my mother, my grandmother, my father, everybody,” he said.

The article, which Mr. Hawke believes was intended to create mischief, stated that: “Shortly after returning from court, he [Hawke] was locked in a closed- door meeting with [Attorney General Basil] Williams for about 15 minutes. Reports are that the former magistrate, who spent some time in Belize, emerged from the building with his belongings and left the area in a taxi. A vehicle had been assigned to him.”
However, Hawke has discredited these reports.

“The report has a litany of inaccuracies. They said I left in some taxi; it was my brother who came to pick me up. I left with my bag, my books that I usually [carry]. They said I left the vehicle that I was assigned. The vehicle sometimes is left there many nights. Sometimes I go home with it; sometimes I don’t, that’s the reality,” he cleared up.
Hawke regrets that there were hints of connections, linking the issues which arose, during the appeal challenging the ruling of the High Court in the no-confidence motion cases on Wednesday, to his presumed resignation.

“The way that they put the story over is as though, because of the error or the inadvertent slip in the Court of Appeal, that somehow I resigned. But I was not involved in the filing of those matters,” he said.

He added that such a time in the country’s history was not for the sowing of “seeds of discord” but for the nation to come together toward a solution to the matter at hand.
“I’m asking Stabroek News to do the correct thing: issue a public apology to me; recant the story because it is absolutely false and inaccurate. It is calculated clearly to cause mischief,” he stated.

“I’m really disappointed that Stabroek News would do that and, in fact, I’m of the view that if they don’t want to recant it, I will take advice from my lawyers.”

AG wants court to determine absolute majority in no-confidence vote - The Chronicle Newspaper - 8th January, 2019

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Published: 10 January 2019

Attorney General and Legal Affairs Minister Basil Williams Photo by Adrian Narine

ATTORNEY General and Legal Affairs Minister, Basil Williams has filed a Fixed Date Application challenging the passage of the no-confidence motion against the government on the basis that the opposition did not secure a majority as required by the Constitution.

He is therefore calling on the court to set aside or nullify the Speaker of the National Assembly’s ruling that the motion was carried. The application, by way of Case stated pursuant to Rule 61:03 of the Civil Procedures Rules, was filed in the High Court on Monday with Speaker of the National Assembly, Dr. Barton Scotland and Leader of the Opposition, Bharrat Jagdeo, the mover of the motion, named as the respondents.

By way of his application, the attorney general is asking the court to determine whether the Speaker’s declaration that the no-confidence motion was carried by a majority in the National Assembly is unlawful, null and void on the basis that its contradicts Article 106 (6) of the Constitution of Guyana.

Article 106 (6) reads: “The Cabinet including the President shall resign if the Government is defeated by the vote of a majority of all the elected members of the National Assembly on a vote of confidence.”

On December 21, 2018, the Speaker had declared that the opposition-sponsored motion was passed after 33 Members of Parliament voted in its favour and 32 against; however, some legal luminaries have since argued that the 33 votes did not constitute an absolute majority as required by the Constitution. As such, the attorney general is asking the court to determine if the motion of no-confidence was validly passed or whether the requisite majority of all the elected members of the National Assembly ought properly to be 34 votes.

REMAIN IN OFFICE 
He is also seeking an order to allow for the President and all ministers of the government to remain in office on the basis that a majority vote was not duly carried in accordance with Article 106 (6) of the Constitution.

The government, through the attorney general, is therefore seeking an order setting aside or nullifying the Speaker’s ruling that the motion was carried, and another, staying the enforcement of Resolution 101.
A conservatory order preserving the status quo ante that the President and all ministers of the government remain in office until the hearing and determination of the questions is also being sought.

“The Conservatory order is necessary to preserve the status quo ante as Article 106 (7) of the constitution requires that the President and all Ministers of the Government remain in office and hold elections within three (3) months. However, the period for the hearing and determination of the matter may expire before that time,” he explained while justifying the need for the order.

It was further explained that if the court grants the conservatory order it will preserve the status quo ante particularly in the relation to the time of three (3) months that was set in motion for the process of National Elections and the resignation of the President and other ministers of government.

“The stay of the enforcement of the resolution is necessary in order avoid the process being rendered nugatory and in all the circumstances the applicant is satisfied that there exist an arguable case on the questions in controversy with a realistic prospect of success on the part of the government,” he noted.

Article 106 (7) of the Constitution provides that “notwithstanding its defeat, the government shall remain in office and shall hold elections in three months, or such longer period as the National Assembly by resolution supported by not less than two-thirds of the votes of all the elected members of the National Assembly determine, and shall resign after the President takes the oath of office following the election.”

34 VOTES REQUIRED 
In laying his grounds for the case, the attorney general alluded to the fact that the National Assembly has 65 members while arguing that mathematically, half of all the elected members of the current National Assembly would result in a fraction of 32.5.
“In the instant case as half of 65 results in the fraction of 32.5, that figure should then be rounded to the next whole number being 33 which would now represent half of the elected members, the majority thereby being a number greater than half means that ‘1’ ought to have been added to the whole number ‘33’ to calculate an absolute majority of 34,” he continued.

He maintained that with the total elected members of the National Assembly being 65 members, the majority half plus one or a vote of 34 or more members.

On December 21, 2018 when the motion was put to a vote, the attorney general contended that it was not validly passed by 34 or more of all the elected members of the House.
“In the circumstances the motion of no confidence is void and has no legal effect to defeat the government on a vote of no confidence in accordance with Article 106 (6) of the Constitution,” he stated.

He noted that the Speaker’s ruling on January 3, 2019 reinforced the necessity for the Court to intervene by giving guidance to the National Assembly in the matter.
“It is in the interest of justice that the Court deals with this Application expeditiously having regard to the imminent consequences which flow from Article 106 (6) and (7) of the Constitution,” the attorney general stated while urging that the matter be dealt with expeditiously.

The matter will be heard on Tuesday January 15, 2019 before Chief Justice (ag) Roxane George-Wiltshire in the High Court. Also on Tuesday, the chief justice will hear another Fixed Date Application which is challenging the validity of the vote cast by Charrandass Persaud in the National Assembly on the basis that he breached the Constitution by having dual citizenship. That application was filed by Compton Herbert Reid, a farmer, through his attorney Rex McKay, S.C.