…after premature announcement of embargoed judgement
…says such acts bring court into disrepute
Immediately after Wednesday’s delivery of its judgement in an election petition case from Guyana, the Caribbean Court of Justice (CCJ) expressed great displeasure at a breach of one of its confidentiality protocols allegedly by the administrator of Attorney General Senior Council Anil Nandlall’s Facebook (FB) page.
It had to do with the premature announcement of the court’s ruling in this very case, in which an advance copy of the draft judgement — which must be kept confidential, and is even watermarked “confidential” —was sent by the regional court to all counsels on the previous day via email, as is customary. While the actual draft copy of the decision was not made public, on Tuesday afternoon, the following was posted on Nandlall’s Facebook pages: “CCJ upholds our submissions in Petition No. 99: Court of Appeal decision reversed…the people won again!”
The post attracted scores of comments and reactions, and left people, including reporters, wondering whether the CCJ had changed the date for issuing the ruling.
The CCJ had previously announced that it would render its ruling on Wednesday at 10:00h. Reporters were able to confirm that that ruling was still scheduled for that day.
When a subsequent check was made on Nandlall’s Facebook page, it was discovered that the above-mentioned post was removed and another status update was made.
“At 3:31pm today [Tuesday], the CCJ via email, dispatched to EACH LAWYER representing the parties in the Election Petition No 99 of 2020, an advanced and confidential draft judgment of the Court to be delivered tomorrow [Wednesday],” the other status read. This post too, was, however, later removed.
Addressing the issue on Wednesday, CCJ Judge Jacob Wit described it as a “very serious and unacceptable thing”. Since Nandlall was absent from Wednesday’s court hearing, as he was away in Barbados on “Government business”, Solicitor General Nigel Hawke was placed in the hot seat, as the CCJ invited him to give his views on what happened.
Plea for forgiveness
“First, I would like to place our sincerest apology to the members of the court, and to our learned colleagues. But what transpired, as I have been instructed, is that an unauthorised note about the judgement…the judgement wasn’t published,” he explained.
“An authorised note was published on his [Nandlall’s] Facebook page. When it was brought to [Nandlall’s] attention, it was immediately pulled. We would like to place our most sincerest apology to the President [of the CCJ] and the other members of the panel. It was in no way intentional, it was in no way intended to bring the administration of justice of the court into disrepute, and we plea and we hope that this court will find grace and forgiveness of that error on part of the administrator of the page,” Hawke added.
Asked by CCJ Judge Peter Jamadar if the Attorney General had expressed his willingness to issue a public apology, Hawke informed that “that would not be a problem”.
Attorney-at-Law Selwyn Pieters, who appeared as co-counsel for the petitioners, and who also practices in Canada, disclosed that in the North American country, lawyers have to sign an undertaking prior to the release of judgements that are embargoed.
Pieters said, “What that premature release did…it was shared all over the internet, and it put the administration of justice into disrepute, because if your honours [the Judges] staff read the comments, it almost seemed like the Attorney General had some privy, but we [other lawyers] were not allowed to say that…all lawyers got a copy of the judgement. We don’t take this lightly.”
According to Pieters, an apology is not sufficient to repair the damage that has already been done. While CCJ Judge Winston Anderson pointed out that the discussion the court was having on the issue is without doubt useful, he highlighted that there “are more profound issues at stake”, which he believed could have been ventilated at that forum.
Emphasising that the post on Nandlall’s FB page gave the impression that the CCJ was only communicating with him, when this was in fact not the case, Justice Wit made it clear that if the court cannot have trust in counsel and the Attorney General’s Office, then it would have to organise itself in a way that this cannot happen again.
At this juncture, Douglas Mendes, SC interjected, bringing the court’s attention to the second FB post, which stated that the advance copy of the judgement was sent to “all lawyers”.
“We have expressed ourselves enough to make it very clear that this is totally unacceptable. This is really serious business. We don’t take this lightly at all,” said Justice Wit, who added that further action by the court would be contemplated.
In addition, Justice Anderson said a public apology is “just the first step”, but whether this is enough or not is still to be decided after a discourse led by the court’s President, Justice Adrian Saunders.
For her part, CCJ Judge Maureen Rajnauth-Lee expressed that she is very concerned about the impact the social media post has had on the court’s integrity, and asked the respective lawyers to “come up with something” to remedy that.
The five Judges who sat in the election petition case informed that they would deliberate with their four other colleagues on how to go forward in relation to the release of the advance copies of judgements and the misconduct committed by the Attorney General.
