High Court Judge Nareshwar Harnanan has struck down a Presidential respite for Finance Minister Winston Jordan which pardoned him from 21 days imprisonment for being held in contempt of a court order over failure to pay a US$2.2M judgment which represents monies owed to DIPCON by the former PPP/C government for road construction works.
DIPCON’s lawyer, Timothy Jonas, then sought to challenge the legality of the respite issued by the President, for the indefinite period terminating upon the expiry of all appeals from the execution of the punishment of imprisonment for 21 days which was imposed by High Court Judge Priya Sewnarine-Beharry.
In a ruling handed down yesterday, Justice Harnanan held that President David Granger’s issuance of a respite for the Minister was not only unlawful but also arbitrary. The judge held that the President’s decision was an overreach into the province of the judiciary which had refused a stay of execution of the contempt order issued by his sister judge.
Further, Justice Harnanan said that the President’s action enables and perpetuates continued defiance by the State through its Minister of Finance, of Order of Court and of the provisions of the State Liability and Proceedings Act, by insulating the Minister against the lawful consequences of default and contempt.
According to the High Court judge, the President’s decision “Perpetuates the default of the State of its obligations under the Orders by the High Court, Court of Appeal and the Caribbean Court of Justice (CCJ)”; and facilitates the continued deprivation of the fruits of the judgment, whilst leaving the successful litigant without any remedy or means to collect its lawful debt.
The ruling of Justice Harnanan means that Minister Jordan’s pardon is gone which technically makes him exposed to punishment of imprisonment for being held in contempt of court.
Under Prerogative of Mercy at Article 188(1) (b) of the Constitution of Guyana, the President has the powers to issue such a grant of respite. According to Section 188 (1) The President may— (a) grant to any person concerned in or convicted of any offence under the law of Guyana, a pardon, either free or subject to lawful conditions; (b) 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.
In January 2015, Justice Rishi Persaud ordered that DIPCON recover the monies from government. But a dissatisfied Attorney General Basil Williams filed an appeal against that decision to the Court of Appeal. That court, however, dismissed the application as it was not filed within the required timeframe.
The Attorney General then sought redress at the CCJ; that court too struck out the belated appeal.
In light of the foregoing, the judgment of Justice Persaud remained enforced; but the monies were still not paid to the construction company. DIPCON, then applied for, and was granted an Order of Mandamus by Chief Justice Roxane George directing that the monies be made to DIPCON on or before January 15, 2019.
The monies were still not paid, and the company’s lawyer instituted contempt of court proceedings against the Finance Minister. Following a full hearing before Justice Priya Sewnarine-Beharry, the judge on June 24, last, held the Minister in contempt of court and ordered that he be imprisoned for 21 days if he fails to pay the monies to DIPCON on or before Monday, July 8, 2019.
The Attorney General then filed an appeal against the contempt order before the Full Court. That court comprising of Justices Simone Morris-Ramlall and Diana Insanally ruled that Williams’s application had no merit. As such, the judges dismissed the appeal and rejected a stay of the contempt order that he was seeking to have.
DIPCON’s lawyer had always argued that the President’s decision is so flawed in law that it amounts to nullity and is improper, unreasonable, irrational and ultra vires and in excess of jurisdiction. The lawyer further contended that no reason or respectable argument has been or can be advanced in support of the President’s decision.
