Rule of law must prevail – PSC

Refusal to honour Court judgement

…Govt’s refusal to pay DIPCON cause for concern – GCCI

The Government’s concerted efforts to avoid paying a construction company a Court-awarded judgement sends a bad signal to the private sector. This is according to the Georgetown Chamber of Commerce and Industry (GCCI) President Nicholas Boyer.

GCCI President Nicholas Boyer
PSC Chairman Gerry Gouveia
From left: Finance Minister Winston Jordan and President David Granger

In an interview with this publication on Tuesday, Boyer said that more worrying than President David Granger’s decision to save his Finance Minister from jail over this unpaid judgement, is the fact that matters reached this far in the first place.
“I am worried about the Government honouring its debts. That has impact for the business climate. Cause that tells you whether you should or shouldn’t give credit to the Government,” Boyer related.
He added that the payment or non-payment of a debt by the Government impacts their trustworthiness. “Especially if you have to go to Court to get a judgement on it. And even when you get the judgement, they don’t pay,” Boyer added.
In a statement through social media on Monday, Opposition Leader Bharrat Jagdeo had also criticised the President’s intervention in a case between Finance Minister Winston Jordan and DIPCON Engineering.
According to Jagdeo, the President’s actions can send a signal that the terms of private contracts with the State can be broken. He also noted that it signals that if the Court issues against the State in commercial disputes, such orders can be ignored.
“We Guyanese, having observed President Granger in action over the past four years, have collectively come to the belief that on matters of policy and when dealing with evidence of corruption by those within his Government, he is often unable to move with any sort of alacrity, that he is slow and aloof”.
“Today (Monday) he has shattered this belief by moving with lightning speed to thwart a Court order and (reprieve) Winston Jordan. Granger’s move to avert settlement on this instance should be contrasted against the multimillion-dollar settlements in matters which involved cronies of the APNU/AFC”.
Jagdeo also pointed to the use of the Guyana Revenue Authority (GRA), which sent DIPCON a letter ordering it to pay $527 Million in owed taxes. According to the former President, this all sends a bad signal to investors and damage an already struggling investment climate.

Rule of law
Meanwhile, the Private Sector Commission (PSC) also said that it has observed, with great concern, the deliberate and repeated refusal on the part of the Government, to honour the judgement of the Court.
According to the PSC, the rule of law must prevail if business is to be conducted in Guyana with confidence in the Government’s respect for the Judiciary and a separation of powers between the executive and Courts. It noted that the private sector must, at all times, be confident that the principles of sanctity of contracts reinforced by the independence of the Courts will be honoured by the State.
“The intervention of the President to protect the Minister of Finance from the law, rather than to encourage him to pay the amount owed and thereby follow the rule of law, sends a message that businesses and private investors can be wronged with impunity,” the PSC said.
The Commission also pointed out that in order for both “foreign and domestic investors to do business in our country with any degree of confidence, they must be confident that the rule of law, administered by an independent Judiciary, will, at all times, be upheld and respected by the Government of the day”.

Court judgement
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, 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.

Executive order
On Monday, the last day for Jordan to pay DIPCON the monies, the President came through with an executive order for a grant of respite shielding the Minister. The President issued the order in keeping with his powers under article 188 of the Constitution. According to the order, Jordan was granted his reprieve “until all appeals and remedies available to him and the State were exhausted”.
Article 188 (b) of the Constitution of Guyana says the President may “grant to any person a respite, either indefinite or for a specified period, of the execution of any punishment imposed on that person for such an offence”.
Meanwhile, the Attorney General’s chambers has since filed an appeal of the full Court’s decision to reject their earlier attempts to stay the Court order. According to the appeal, Justice Priya Sewnarine-Beharry “misdirected herself in a number of points when she rejected them”.
Among their contentions are a regurgitation of the previous arguments they made, which is that DIPCON’s Court action fell under public law and, therefore, Jordan should not be liable in his personal capacity.

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.