Ministry of Legal Affairs

Modern arbitration laws crucial - The Chronicle Newspaper - 26th April, 2018

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Published: 27 April 2018

Attorney General, Basil Williams

…AG tells international commercial conference

GUYANA in preparing itself for an overwhelming increase in international transactions is creating a legal climate that is conducive to economic trade and investment, something Attorney General and Minister of Legal Affairs, Basil Williams, SC, believes is crucial now.

In light of Guyana’s upcoming oil and gas production here, Williams said the time is ripe to “promulgate modern arbitration laws to meet internationally acceptable standards.” He was at the time speaking at the third annual International Commercial Arbitration Conference being held for the first time in Guyana.

“The International Community’s growing attraction to Guyana and the bourgeoning interests of investors in the oil and gas sectors demand that our standards are tested and raised against the highest of benchmarks and the best standards of the international legal, business and dispute resolution community,” said the Attorney General.

President of the CCJ,Sir Dennis Byron

He noted that arbitration has traditionally been the preferred and accepted mode of resolving international disputes. “International Investment and commercial transactions alike generally favour the use of arbitration with the power of autonomy over process, the ability to negotiate your own clause and tailor the procedure of the arbitration as against the strict and often lengthy and costly court proceedings,” he explained.

Williams made it clear that countries which have a strong legal framework have always attracted investors while adding that with Guyana with its new found resource is no exception. As a result, he believes there is the need for greater capacity building while creating a legal environment that is “sound and investor friendly”.

“Nonetheless, this by no means alienates the role of the court in the arbitral process as ultimately, the court acts as gatekeeper for guaranteeing the integrity of the process,” Williams stated at the historic opening of the first ever international arbitration conference in Guyana.

The conference which is hosted by the Chartered Institute of Arbitrators in collaboration with the University of Guyana; the Caribbean International Chamber of Commerce; the International Center for the Settlement of Disputes; CARICOM; and the Dispute Resolution Center, saw participants from across the region and further afield.

“This conference marks a historic day in Guyana, most importantly for the strengthening of our legal and structural framework in the area of dispute resolution and in the development of conflict resolution as a whole.” Participants over the next few days will deliberate on ADR measures, Adjudication, Mediation and Arbitration, along with the fact that Guyana has court-assisted Mediation. Williams said Guyana welcomes the pursuit of other elements of alternative dispute resolution.

WILLPOWER of GOVERNMENT 
The Attorney General stressed that the will-power of his government to create the right legal framework is the need to equip the Bar, State Counsel and business communities on the ability to effectively draft arbitral agreements and respond to the disputes that are often inevitable. He said too that the conference represents the first of many new beginnings and noted hopes that it fosters greater collaboration and training to develop human technical capacity in arbitration. Each stakeholder, Williams said, plays a critical role in ensuring that the needs of the country are best served.

Modernise arbitration framework 
Meanwhile, President of the Trinidad-based Caribbean Court of Justice (CCJ) Sir Dennis Byron called upon legislators to modernize Guyana’s arbitration framework in light of heightened commercial activities coming here with the impending oil and gas sectors.
He posited that the “benefits the country will derive from this new development will depend to a large extent on whether the laws of the country can facilitate this development or not.”
The CCJ President said the hosting of the conference in Guyana is timely because of the oil and gas industries and the anticipated “explosion of international commercial activities” here which are a necessary consequence of the development of those industries. Sir Byron who was invited to give the keynote address during the lunch break, noted Guyana’s efforts to join the family of arbitration communities within the Caribbean, but urged that across the region there is need to focus on the importance of timeliness, and the efficiency in arbitration proceedings.

“I have been pushing the fort in our Region that the use of technology has to be at the heart of dispute resolution processes,” he stated while noting that arbitration is an area of dispute resolution where the access to justice is important.

The CCJ president stressed too the importance of developing resources and processes that would aid in boosting the standard of efficiency in the delivery of justice through the use of technology. The Judge pointed to the electronic filing of cases and case management and noted that the role of Advanced Performance Exponents (APEX), an agency sponsored by the CCJ to promote and advance standards and efficiency in the administration of justice in the Caribbean Community and specifically to help to utilise technology to improve justice delivery process.

Holding events like this which facilitate training and information dissemination strengthen the benchmarks of the region and promotes a healthy level of respect for the processes of arbitration across the region.

Use of technology 
In response to a question posed by Guyana Chronicle on the use of court technology, the CCJ president said court technology over the years has become an important element in improving the quality of justice delivered globally. “I have been interested in promoting increased efficiency in all judicial administrative and I have thought that important tools to achieving that is the use of technology, case management…I was making the point that arbitration proceedings should also benefit from the same standards of efficiency, using appropriate management techniques supported by technology.”

Justice Byron said one of the important benefits of the arbitrary process is that it provides an opportunity for the timely and efficient dispute resolution of matters. CARICOM, he said, has been working assiduously on the development of modules for modernizing the law which could be replicated in each member state. He noted that the idea of arbitration and having international arbitration centres is catching on in the Region, while noting that there is need for the harmonization of laws which ought to be adopted across the board.

“Commercial International arbitration is commercial international arbitration,” he remarked while highlighting projects being conducted by IMPACT Justice and representatives of OHADAC, The Organisation for the Harmonisation of Business Law in the Caribbean.
OHADAC is a project on the harmonizing of business law in the broader Caribbean which is aimed at reducing legal constraints and consolidating economic integration. “I think it might be interesting for our practitioners and experts and academics in the Commonwealth Caribbean to see to what extent cooperative relationships could be enhanced.

I can assure you that at the CCJ we have tried to set the example and we have signed a cooperative agreement with OHADAC,” the CCJ president stated as he referenced calls for one regional arbitration centre.

The Chartered Institute of Arbitrators (CIArb) is a leading professional membership non-profit organisation which represents the interests of alternative dispute resolution (ADR) practitioners worldwide. It has over 15,000 members located across 133 countries

supporting the global promotion, facilitation and development of all forms of private dispute resolution worldwide. The Caribbean Branch of the Institute was formed in 2006 and is chaired by Shan Greer. It is committed to promoting acceptance and the use of Arbitration and ADR throughout the Region. An international arbitration centre is to be launched in Barbados soon. Several experienced arbitration academics and practitioners are participating in the three day conference being held at Duke Lodge, Kingston.

Malicious — AG denounces charges against Lawrence, Norton - The Chronicle Newspaper - 22nd April, 2018

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Published: 27 April 2018

Attorney General and Legal Affairs Minister, Basil Williams

— calls for DPP review

ATTORNEY General and Minister of Legal Affairs, Basil Williams, SC. has described the move on Thursday by People’s Progressive Party (PPP) Members of Parliament (MPs) Juan Edghill and Vickram Bharrat to file private criminal charges against Minister of Public Health Volda Lawrence and Minister of Social Cohesion Dr. George Norton, for misconduct and abuse of public trust, as “malicious”.

Williams told reporters Saturday that the move to file the charges by attorney Anil Nandlall, also represents an “aberration to the Rule of Law” and that it is an insult to good governance and an abuse of the process of the court,to allow such “unsubstantiated recourse to our justice system based solely on malice, whim and caprice”.

The attorney general contended that there is no evidence of criminality on the part of the two ministers, which has been contended by the investigatory and prosecutorial agencies of the state.

Notwithstanding those charges, Williams, SC made it clear that the duo would be vindicated. In response to a question posed by the Guyana Chronicle, he disclosed that his office has already approached Barbadian Queens Counsel, Ralph A. Thorne and Hal Gallop.
“We had to have recourse to the two Barbadian Queens Counsel who I again have already spoken to in relation to my two ministers, because if you wish to mess around my ministers, you’d have to have the best representation; trusted representation,” asserted Williams.

Reading from a prepared statement, the attorney general who has just returned from an overseas conference in the US, said “to countenance partisan, political, private criminal charges coming out of Freedom House is a recipe for returning Guyana to the status of a failed narco-state as it was under Presidents Jagdeo and Ramotar.”
He noted that establishment of the office of the Director of Public Prosecutions (DPP) by the constitution empowers the holder of the office with total power over all prosecutions, whether initiated or undertaken by her or some other authority.

“If charges are initiated by others, the DPP can discontinue them if she so desires, or take them over and continue them,” Williams said, while explaining that the DPP has the “powers of quality control” over all prosecutions here.
He said the DPP, Shalimar Ali-Hack, also has a proactive duty to patrol the corridors of justice to ensure her domain is not polluted by “jaundiced interlopers”.

NO COMPARISON 
He stressed that there is no comparison between the cases where the DPP charged former Finance Minister Dr Ashni Singh and former head of the National Industrial and Commercial Investments Limited (NICIL) Winston Brassington for misconduct of public office, contrary to the common law and the private charges laid by Edghill and Bharrat.

One week prior, the charges against Dr Singh and Brassington, who both reside abroad, were filed by the Special Organised Crime Unit (SOCU). According to the first charge, Dr Singh and Brassington in December 2009 “acted recklessly” when they sold to National Hardware Guyana Limited, lands amounting to 103.88 acres, property of the state for the sum of $598, 659, 398 (vat exclusive) without first having procured a valuation of the said property from a competent valuation officer.

The second charge alleged that the duo in December, 2008 “without due diligence” sold to Scady Business Corporation, land located at Liliendaal, ECD, amounting to 4,700 acres, also the property of the state for the sum of $150,000,000 knowing that the said property was valued at $340,000,000 by Rodrigues Architects Associate.

The final charge alleges that they in May, 2011 “acted recklessly” when they sold to Multi-cinemas Guyana Inc. 10, 002 acres of land located at Turkeyen, ECD, property of the state for the sum of $185, 037,000 without first having procured a valuation of the said property from a competent valuation officer.

The DPP has since been asked by Nandlall to review the charges laid against his clients. On Saturday, Williams made it clear that it is expected that no less a treatment would be meted out, given the circumstances.

“…the government would expect no lesser treatment for the charges she (DPP) did not institute, lest the floodgates open to create a festival of private criminal charges even against the leader of the opposition,” he stated.

COMMITTED TO TRANSPARENCY 
On Friday, Minister of State Joseph Harmon maintained that his government is committed to transparency and ending corruption, noting that the charges brought against Dr Singh and Brassington were not politically motivated or directed by his administration.
In an interview with the Public Information and Press Services Department of the Ministry of the Presidency, Harmon described the charges brought against Lawrence and Dr Norton as frivolous and a clear attempt to taint the reputation of members of the government. Like Williams, Harmon said the two ministers will be vindicated.

“These talks of corruption are without any proof and the opposition is now seeking to grab at straws… The security agencies, the Police Force and so on have their work to do and when they find as they have been doing, evidence of corruption, evidence of malfeasance and they will take the necessary steps,” Minister Harmon said.
The Minister of State contended that the charges brought by the PPP MPs is a strategy aimed at tying the government ministers up in court so that government can be distracted from its development agenda.

The minister said that the David Granger administration, since its assumption of office in 2015, has had the Herculean task of fixing the systematic corruption, which existed under the former administration. He noted that it is under this administration that significant steps were taken to improve accountability and transparency in the public sector and the world’s perception of Guyana.

Meanwhile, while the charges against Dr Norton and Lawrence were not read in court, as the duo were not present, Chief Magistrate Ann McLennan summoned both ministers, who are expected to appear in court on Tuesday.

It is alleged that Lawrence while performing the duties of Minister of Public Health between January 16, February 16, 2017 “wilfully misconducted herself in a way which amounted to an abuse of public trust without reasonable excuse or justification, when she authorised or caused the unapproved single sourcing and purchase of drugs and medical supplies for the Georgetown Public Hospital Corporation, in the city of Georgetown from ANSA McAL Trading Limited… for the excessive sum of $605,962,200”.

The charge against Dr Norton however, alleges that while “performing the duties of Minister of Public Health of the Government of Guyana, June 1, 2016… willfully misconducted himself in a way which amounted to an abuse of public trust without reasonable excuse or justification, when he authorised or caused the rental of the property known as and situated at 29 Sussex Street, Albouystown, in the city of Georgetown from Linden Holdings Incorporated… for the sum of $12,500,000 exclusive of VAT, per month, by way of a written Agreement of Tenancy at an excessive rate of rental”.

‘A good day for justice’ - The Chronicle Newspaper - 24th April, 2018

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Published: 25 April 2018

Attorney General Basil Williams, SC

–AG says DPP did right thing to throw out PPP private charges

ATTORNEY General and Minister of Legal Affairs, Basil Williams, SC. on Monday lauded the decision of Director of Public Prosecutions (DPP) Shalimar Ali-Hack to discontinue private criminal charges against Ministers of Public Health and Social Cohesion, Volda Lawrence and Dr George Norton, respectively.

Williams said that the decision made by the DPP represents “a good day for justice” here. He said, “I think she (DPP) did the right thing” while accusing the PPP of “political grandstanding”.

The DPP’s decision was handed down Monday following a call by the Attorney General for the charges to be reviewed. In a statement issued to the media the DPP made it clear that the charges ought to have been reported to the Police first for an investigation to be launched then advice sought from her office.

“These charges concern a grave issue under the criminal law in relation to two serving ministers. In the interest of good governance in the State of Guyana such allegations ought first to have been reported to the Guyana Police Force for an investigation to be launched and the advice of the DPP sought,” the DPP stated.

The two ministers were charged with Misconduct in Public Office, contrary to the Common Law and the private criminal charges were filed last Thursday by former Attorney General under the People’s Progressive Party (PPP) administration Anil Nandlall on behalf of that party’s Members of Parliament Juan Edghill and Visram Bharat.

The two parliamentarians alleged that Lawrence, while performing the duties of Minister of Public Health between January 16, February 16, 2017 “wilfully misconducted herself in a way which amounted to an abuse of public trust without reasonable excuse or justification, when she authorised or caused the unapproved single-sourcing and purchase of drugs and medical supplies for the Georgetown Public Hospital Corporation, in the city of Georgetown from ANSA McAL Trading Limited… for the excessive sum of $605,962,200”.

It should be noted that the Public Procurement Commission (PPC) had cleared the Public Health Minister of any wrongdoing. Meanwhile, the charge against Dr Norton, alleged that while “performing the duties of Minister of Public Health of the Government of Guyana, June 1, 2016… wilfully misconducted himself in a way which amounted to an abuse of public trust without reasonable excuse or justification, when he authorised or caused the rental of the property known as and situated at 29 Sussex Street, Albouystown, in the city of Georgetown from Linden Holdings Incorporated for the sum of $12,500,000 exclusive of VAT, per month, by way of a written Agreement of Tenancy at an excessive rate of rental”.

The charges laid against the two ministers came one week after the Special Organised Crime Unity (SOCU) would have instituted criminal charges on three counts of misconduct in public office, contrary to the common law against former Finance Minister Dr Ashni Singh and former head of the National Industrial and Commercial Investments Limited (NICIL) Winston Brassington for the sale of state assets at lower prices than valued.

However, on Monday, Williams SC. told Guyana Chronicle that by virtue of the Constitution, the DPP has the power to keep that balance and is a very important person in the maintenance of peace, order and good government. “So you have a situation where somebody comes out of a political house and comes and files some private criminal charge and it is entertained. There is no evidence,” the Attorney General declared. He said evidence is critical in the making out a case against the two sitting ministers.

He reminded that while in government, and allegations were made against the then PPP government, opposition members were called upon to “bring the evidence”. “So, I am surprised that they actually went to the court swinging empty hands. They ought to have gone to one of the investigatory agencies of the state the police or SOCU (Special Organised Crime Unit) and take the evidence to them.

They can’t just look at two sitting ministers and just make whimsical and capricious allegations unsupported by evidence. I think the DPP must be applauded,” said Williams.
Asked whether he believes the three additional charges filed by the opposition Members of Parliament would also be discontinued, Williams responded in the affirmative. Three charges were filed against Minsters of Finance, Public Infrastructure and Public Service, Winston Jordan, David Patterson and Dr Rupert Roopnaraine. Jordan and Patterson are accused of “wilfully misconducting themselves in a way which amounted to an abuse of public trust without reasonable excuse or justification” when they paid or authorised to be paid the sum of $906,000,000 to Homestretch Development Incorporated and contractors engaged by the said company for works done at Durban Jubilee Park without any procurement process.

On the other hand, Dr Roopnaraine is accused of wilfully misconducting himself in a way which amounted to an abuse of public trust without reasonable excuse or justification by acting as a Director of Homestretch Development Incorporated when the said company received $906M for works done at Durban Park. Williams opined that the move by the PPP MPs amounts to “political grandstanding”. “If you have evidence go and give it to the police, go and give it to SOCU, SARA (State Assets Recovery Agency). It is clear they don’t have evidence and all they try to do is denigrate and libel and try to lure people…”

MAGISTRATE MUST BE VIGILANT 
The Attorney General disclosed too that like the DPP, the Magistrate acts as a filter to the judicial process. He noted that the DPP would not have been aware of the charges being filed against the two ministers. “She (the magistrate) also has the duty to interrogate what they are bringing to her. They go to her, they don’t lay over any evidence, no statement nothing and I think the DPP did the right thing,” Williams stated while noting that Guyana is an orderly society.

“You have an allegation, you go and make a complaint to the relevant authorities and they process and take it to the DPP. It would be tantamount to having some jungle jurisdiction if the law were allowed to operate in this manner,” the Attorney General declared.

Government had deemed the charges laid by the opposition MPs as malicious and said it represented an aberration to the Rule of Law, an insult to good governance and an abuse of the process of the Court to allow unsubstantiated recourse to the justice system based solely on “malice, whim and caprice and no evidence of criminality on the part of the Ministers”.

AG dismisses Jagdeo concerns about CCJ - The Chronicle Newspaper -23rd April, 2018

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Published: 25 April 2018

ATTORNEY General and Minister of Legal Affairs Basil Williams, SC, on Saturday dismissed statements attributed to Opposition Leader and former president Bharrat Jagdeo which suggested that statements made by government ministers on the term-limit case which is currently before the Caribbean Court of Justice (CCJ) is likely to prejudice the outcome.

“I am surprised that Mr Jagdeo has problems with the CCJ. I would not get into that type of discussion. I did my talking during the hearings and I feel confident that we could leave the panel of eminent judges which adorn that bench to discharge their responsibilities,” Williams said in response to questions posed by this newspaper.

The attorney general said that there is a general concern about statements being made about court cases that are before the courts.

“Yes, there is a general concern,” he told reporters while referencing a recent press conference held by Foreign Affairs Minister Carl Greenidge on the same subject. Greenidge warned that matters placed before the courts are sub judice, meaning they are under judicial consideration and ought not to be reported on or be the subject of public discourse.
“Persons who want to have an insight into what happened in the court, they could go to the CCJ website and listen for themselves and they don’t have to be subjected to PPP propaganda,” said Williams.

However, Jagdeo at a media briefing this week referenced a recent political meeting in Berbice where Vice-President and Minister of National Security, Khemraj Ramjattan, reportedly suggested that the CCJ will rule in the government’s favour in the term-limit case.

“I don’t know whether it’s loose talk or they do have inside information as they say, but either way this could affect the credibility of the court. If they claim they have inside knowledge, it could also be entirely false,” Jagdeo stated.

Meanwhile, back in March, Williams and a battery of lawyers appeared before the full bench of the CCJ where the court was informed that two former top judicial officers here had erred in applying the Basic Structure Doctrine in the ‘third-term case’, even as he asserted that the term-limit act is valid.

Government has challenged a Court of Appeal ruling in the case brought by the relatively unknown Cedric Richardson on the presidential term-limit. The ruling was initially challenged by both the state and former Speaker of the National Assembly, Raphael Trotman. Trotman has dropped out of the case.

The state is being represented by Williams SC, Solicitor-General Kim Kyte-Thomas, State Counsel Uteika John and Barbadian Queens Counsel, Hal Gallop and Ralph Thorne, while Richardson is being represented by Douglas Mendes of Trinidad.

KEENLY WATCHED 
The case is being keenly watched and many feel that Jagdeo, who served two terms as president, has played a big role in the challenge of the term-limit, but he and his party have always denied this.

Richardson of Laing Avenue, Georgetown, in a constitutional challenge just before the May 2015 General and Regional Elections, contested the amendments made to Article 90 of the constitution that were enacted in 2000 following a bipartisan Constitutional Reform Process.

Article 90 (2) states that “a person elected as President after the year 2000 is eligible for re-election only once.” He argued that that the term-limit infringes on Articles 1 and 9 of the constitution, wherein Article 1 states that “Guyana is an indivisible, secular, democratic, sovereign state in the course of transition from capitalism to socialism and shall be known as the Co-operative Republic of Guyana” and Article 9 states that “Sovereignty belongs to the people, who exercise it through their representatives and the democratic organs established by or under this constitution.”

However, Williams argued that amendments made to Article 90 are not unconstitutional. The attorney general told the CCJ that the High Court and Court of Appeal of Guyana applied the Basic Structure Doctrine in the case. He pointed out that the doctrine does not apply to Guyana and any other CARICOM country that has a constitution that mirrors the Westminster model. The Basic Structure Doctrine is an Indian judicial principle that the constitution has certain basic features that cannot be altered or destroyed through amendments by the Parliament. The doctrine applies only to constitutional amendments.
But Williams argued that “where legislation is passed in accordance with prescription — in terms of manner and form — the court ought not to inquire as to the propriety, the substance of that legislation.”

He rejected outright the use of the concept of Basic Structure Doctrine, noting that it does not apply to the Guyana Constitution. “The Act was validly passed. The only question is whether it conforms to the constrictions on Article 164 (2) (6) of the constitution. Our submission is that it did,” he posited.

Meanwhile, Solicitor-General Kyte-Thomas raised the issue of delay. She argued that while the issue of delay was not initially raised in the Supreme Court or the Court of Appeal, it is important.

“We acknowledge your honour, that there was no limitation in other constitutions in respect to the bringing of constitutional claims and seeking constitutional relief. However, the courts around this Region have spoken.”

She pointed to case law where it was ruled that a litigant cannot sit idly by and then years after go to the court seeking redress. She reminded that the court found in many instances that delay may defeat a constitutional motion.

Statement by A.G and Minister of Legal Affairs on private charges brought against Ministers - 24 April, 2018

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Published: 24 April 2018

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