Former AG slams Executive interference into Judicial process
A former Attorney General has criticised the way President David Granger – by virtue of the order of respite he issued saving Finance Minister Winston Jordan from prison over an unpaid Court judgement on Monday— interfered in the running of the Judiciary.
According to former Attorney General Anil Nandlall, the President’s actions were unprecedented in this part of the world.
He acknowledged that while the President is empowered under Article 188 of the Constitution to issue an order of respite, common sense, judicial practice and the separation of powers dictate that this power should be used wisely.
“I have never heard anywhere in the Caribbean or the British commonwealth that the head of the Executive intervened in an ongoing judicial process in order to insulate anyone, moreover an Executive officer, from the judicial process,” Nandall said.
“What I do know, is that the Prerogative of Mercy is a power the President has, inherited from the Queen (of England), normally used at the end of the judicial process, in deference to the Doctrine of Separation of Power, which allows each of the arms of the State to function with autonomy”.
As an example, Nandlall explained that when a bill is going through the National Assembly, the Judiciary cannot – unless under highly exceptional circumstances— intervene and stop Parliament from passing that bill.
“Under the Constitution, the Judiciary can strike down any bill or law that is inconsistent with the Constitution. And the Court will not exercise that power until that bill passes through Parliament and becomes law. The Judiciary will tell you that they cannot stop the process of Parliament from passing that bill out of deference for the separation of powers”.
He added that similarly, though the Executive may have a power, President Granger should only do so after the judicial process is completed. “Not when it is ongoing. Here you have Jordan before the Court, the Attorney General says he’s going to appeal from the Full Court to the Court of Appeal and if he loses there, can go to the Caribbean Court of Justice”.
Nandlall expressed the view that it is only when all appeals are exhausted that the President’s prerogative should be exercised. He noted that this power “cannot be initiated so that the Executive can step in to the Judiciary and stop the Judiciary from discharging its functions”.
Meanwhile, the Ministry of the Presidency issued a statement in which it revealed that “Cabinet” had endorsed the actions of the President. This is despite the No-Confidence Motion was passed and Article 106 of the Constitution stipulates that the President and Cabinet stands resign.
“Cabinet calls on the Courts to protect the Executive from vexatious and partisan action,” the statement said.
Last month, High Court Judge Justice Sewnarine-Beharry had ordered Minister Jordan to pay DIPCON the US$2.2 Million award or face jail time. The Trinidad-based construction company had taken the Finance Minister to Court for failing to honour the payment of millions of dollars, which was awarded to DIPCON by Justice Rishi Persaud in 2015.
After DIPCON took the Government to Court back in 2009 to recover monies owed for road works done, Justice Rishi Persaud had ordered Government to pay the company US$665,032.17 as payment for the works done along with US$1,563,368.50 for costs it incurred for those works, together with interest on both amounts, at a rate of six per cent annum from February 10, 2009, to October 21, 2015 and, thereafter, at the rate of four per cent per annum until fully paid.
However, since none of the payments they were owed were made, DIPCON had successfully approached the High Courts for an administrative order to compel the minister to make the payment.
On Friday last, Justices Diana Insanally and Simone Morris-Ramlall threw out Jordan’s application, filed by Attorney General Basil Williams, for a stay of the Court order. In their judgement, the judges expressed their view that his application had no merit.
Advisory Council on the Prerogative of Mercy
Article 188 of the Constitution of Guyana empowers the President to grant to convicted persons a State pardon, either conditionally or otherwise, or grant a respite of the execution of the punishment imposed or substitute a less severe punishment.
However, he has to engage the Advisory Council on the Prerogative of Mercy under Article 189 before such action is taken. As a matter of fact, in an article published by the Ministry of the Presidency in 2016, it was pointed out that the Advisory Council on the Prerogative of Mercy, under Article 189, is therefore mandated to advise the President.
In that article, President Granger is quoted as saying, “The exercise of the Prerogative of Mercy is not unfettered and under the Constitution…The powers I exercise under this part will be determined and guided by the advice of the Council. I don’t have the opportunity to behave in an arbitrary or capricious manner…”
The Prerogative of Mercy is usually exercised in response to a petition from a convicted person or someone acting on their behalf and by constitutional convention on advice from the relevant Government minister. In Jordan’s case, it was not clear if President Granger engaged that council before invoking his executive powers on Monday.