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    Dipcon Engineering v. AG of Guyana and Anor 2019-HC-DEM-CIV-FDA-1148

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    IN THE [GH COURT OF THE SUPREME COURT OF JUDICATURE OF GUYANA CONSTITUTIONAL AND ADMINISTRATIVE DIVISION PROCEEDING FOR ADMINISTRATIVE ORDER 2019-1C-DEM-CIV-DA- 11.48 rWIEEN: DIPCON ENGINEERING SERVICES LIMITED Applicant and- 1. THE ATTORNEY GENERAL OF GUYANA 2. PRESIDENT OF THE CO-OPERATIVE REPUBLIC OF GUYANA Respondents BEFORE THE HON. NARESHWAR HARNANAN, J. MR. TIMOTHY MUNRO JONAS FOR THE APPLICANT "AND MR. NIGEL OVID HAWKE FOR THI MR. BASIL WILLIAMS § RESPONDENTS Brief facts: ‘ion of the 1. The Applicani seeks an orler of certiorari quashing the deci 201 Respondent, the President of Guyana male on 8" July, 2019 pursuant to Article 188(3)(b) of the Constitution of Guyana, granting a respite of the execution of punishment imposed on Mr. Winston Jordan, the Minister of Finance, by Mon. Madam Justice Priya Sewenarine-Beharry. ‘The respite was for an indefinite period terminating upon the expiry of all appeals. 2. ‘The Applicant argues that the Respondents have failed to give reasons for the exercise of the power under the said Article and further, that the interference of the President by the said decision violates the separation of powers doctrine. ‘the Applicant therefore argues (hat the decision amounts to a nullity, was arbitrary, unreasonable, irrational anc ultra vires. tee ‘The genesis of these proceedings, is an Order of Court dated October 21, 2015, made by the Honourable Justice Rishi Persaud, in which the 228,100.67, or its equivalent in Applicant was awarded the sum of U Guyana Dollars and costs in the sum of GYD%61,200,000,00 against the Stale, ‘The Applicant argues that the Minister was lawfully obliged (o direct the payment of the judgement debt on behalf of the Stale pursuant to section 14 of the State Liability and Proceedings Act, Chapter 6:05 of the Laws of Guyana After a period of non-compliance with Justice Rishi Persaud’s order, the Applicant instituted proceedings in Court for an order of Mandamus, to compel the State, more specifically, the Minister of Finance, to direct debL. The Court agreed and issued the order of payment of the judgemes Mandamus on March 1, 2018. Again, after non-compliance with (he orders of Court, the Applicant further applied to the Court for an order directing Winston Jordan to obey the Mandamus order. This was granted on November 12, 2018. Both of the Hon, Chief Justice Roxane George SC. Orders were al the ins! After non-compliance with the orders of Court yet again, the Applicant n Lun Jordan to prison for is failure to sought an order committing Wir ‘An order of criminal contempt was then comply with the Court order: granted on June 2t, 2019, By that ruling, it was ordered (hat Winston ntempl unless the judgement was paid on or Jordan was in criminal belore July 8, 2019, failing which he would be imprisoned for 21 days. ‘The Applicant contends that the said Minister of Finance, in or around May 2019 presented a supplementary budget for approval which included the sunr of $800,000,000.00 to satisfy the payment of the judgement debt, which was approved by Parliament. Further, the Applicant contends that the Presidents deci jin to grant Winston Jordan a respite, has the following effect: a, amounts to an interference by the Executive with the lunctioning of Parlininent which has approved the payment of the debt in violation of the separation of powers doctrine and an interference aya 20. Counsel on the Applicant’s behalf also submits that Article 182 draws a distinction between personal and official capacity of the office holder, and Jent in his official where 2 civil proceeding is brought against the Pres capacity, for an art done in his official capacily, and no relief is sought yy, that proceeding is nol prohibited by from hie in his personal pac Article 182 and therefore (he action is properly instituted and maintained inst the President. 21. Couns that Article 182 precludes the Presicent being added I subi 3 done in his private rapacity only, and impliedly in civil proceedings for ac affirms that the Head of Sule remains amenable to Court proceedings relation to acts clone in his official capacity, for example, judicial review of his decision to grant a respite. 22. Counsel also pointed out that Motswaledi, supra, as relied on by the Attorney General, does nol support their contentions because the circumstances could be distinguished in that case. relate to the Presid 23, Counsel argues that the facts her at being named in his official capacily in civil proceedings in respect of an act done in his off Al capacity, a situation which is specifically exchucled front the ambit of Article 182. Counsel further relies on the dicta, infer cilia, in Hochoy v LT] UKPC 12, and Yassin Nuge et al (1964) 7 WIR 174, AG v Dumas and Thomas v Attorney General, CA 40/1996, in support of their contentions. ISSUE: A. Whether the President of Guyana ean be made a party t these civil proceedings 8. Whether the President exercised his discretion under Article 188(1) of the Constitution of Guyana fairly, properly, lawfully and reasonably ISSUE A’ Wheiher the President of Guyana can be made a prrty to these civil proceedings. Law and Analys 24, Article 182 of the Constitution of the Republic of Guyane provides: (1) Subject to the provisians of article 180, the holder of the office of President shall not be personally answerable to any court for the performance of the functions of hiis or her olfice or for any act done in the performance of those functions and no proceedings, whether criminal or civil, shall be instituted against hint or her in his or her personal capacity in respect thereof either curing his or her term of office or thereafter. {2} Whilst any person holds ar pes forms the functions of the office of Presieent no criminal proceedings shall be instituted or continued agains! him or her in respect of anything done or omitted to be done by him or her in his or her private capacity continued in and no civil proceedings shall be instituted or respect of which relief is claimed against him or her or anything done er omitted to be done in ltis or her private capacity, (3) Where provision is made by kuy limiting the time within which proceedings of any description may be brought against any person, the period during which any person holds or performs the functions: of the office of President shall not be taken into account in calculating any period of time prescribed by that law for bringing any such proceedings. 25. In the Ugandan case of Pumukunde v AG and another (Constitutional Pelition No. 6 of 2005), UGC 1 [25 August 2005], one of the issues before the Court was whether the actions of the Comivander in Chief/President can be challenged in a Court of law. The Constitutional Court of Uganda cle 98 of the Constitution of exninined and analysed the purport of Ai Uganda, more specifically sub-articles (1). (4) and (5), which sets oul the President's iramunities. Article 98 provides (hat: (1) There shall be a President of Uganda who shall be the Head of Chief of the State, Head of Government and Commander Uganda Peoples’ Defence Forces and the Fountain of Honour. (4) While helding office, the President shall not be Tiable to proceedings ip any court (5) Civil or criminal proceedings may be instituted against « person after ceasing lo be President, in respeet of anything done or omitted Jo be done in his or her personal capacity before or curing the term of office of that pers 1y such proceedings shall not be (alcen to run curing the period on; and any period of limitation in respect of while that person was President, [ermphasis supplied] 26, Kitumba JA and Mutesa-Fikonyoge DCTopined the following in thei Baker os combined judgement, «fler relying on the dieta in the Ui Cart 369 US 1962 and William Clinton us Paula Jones 520 US 68 [1997] However, challenging the act or acts of the President is one thing url of law is and prosecuting him and bringing hin: before a Cs another, We agree thal clause 4 of Article 98 the President cannot be prosectited for @ criminal offence or be sued in a civil action in any courl.. With regard (0 the parties to the action for complaints against am act or acts of the Presiclent, the proper respondent or person (0 sue is the Attorney General. II not be liable However, while holding office, the President sha to proceedings in any court. Jemphasis: supplied] 27. Similarly, Twinomujuni JA construed the nwaning of Article 98(4) of the Uganda Constitution and stated: |. that the article only protects the person of the President from being dragged in Courts of law either as a party or a witness for actions performed when holding (he office of the President Article 98(4) menns that anc no more 28. Ina Sri Lankan case Kumaranatunga v Jayakody and Another [1984] 2 Sri LRAS (15 Mareh 1984), the Court of Appeal of Sri Lanka held ‘Phe language of article 35(1) of the Constitution is s0 clear and tinambiguous that the need for interpretation pf this article does not arise. his urlicle ily on the sing proceeded e by him: [his office, ft mitted uy inciny tribe icle 85(1); the President is immune ‘There are (wo aspects to from all proceedings and the Court is barrecl from entertaining and continuing any proceedings against him. Hence no petilion can be inslituledl inpleacing the President as grespondent. jemphasis supplied]. 29, In that case, the preliminary objection was raised that the 2m! of President of (be Republic of Sri Lanka, respondent. holdiny the off could not have been mace a parly-respondent in the proceedings as his joinder contravened Article 35(1) of the Constitution, 30. Article 35 of the Sri Lanka Cor holds office as Pr ontinued against him in_any court 2.done by him stitution veads as follows: ident, no proceedings shall tribunal in ther in his provision is made by law finviting the time within which proceedings of any description may be brought against any person, the periud of time during which such person holds the office of President shall not be taken into account in ealeulating any period of lime prescribed by tit law. {3} The immunity conferred by the provisions of paragraph (1) of this Article shall not apply to any proceedings in any court in relation to the exercise of any power pertaining to any subject or function assigned to the President or remaining in his charge under paragraph (2) of Article 1 or to proceedings in the Supreme Court under paragraph (2) of Article 129 or to proceedings in the Supreme Court under Article 130(a) relating to the election of the President. : Aten Provided (hat any such proceedings in relation to the exercise of any power pertaining to any such subject or function shall be instituted against the Altomey-Ceneral, [emphasis supplied] BL. Sec also Vietor Ivan And Others v Hon. Sarath N Silva and Others [2001] J Sri LR 309 (20 June 2001) where the Supreme Court of Sri Lanka also held that proceedings could not be instituted against the President in light of Article 35(1). See also Mallikarachehi v Shiva Pasupathy and [uss] 1 sri LR 74 and Karwnethitake 0 Commissioner of Blections [1999] 4 LEC 380. 32. It must be noted also that in Baird v PSC, cited above, Chang CJfag) nathilckoa, ciled above, and noted that Article relied on (he dicta in Keer © lo Article 38(1) of the Sri Lantcan Constitution is very similar in nate 182 of the Guyana Constitution. se Rameshwar Prasad and Others v Union of India 33. In the Indian ci 1es before and Another [2006] INSC 35 (24 January 2006), one of the answerable (o any Court in view the Court was whether the Governor w of the immunity granted by Article 361(1) of the Constitution. 34. Artiele $61 of the Indian Constitution provided that: (1) The Presiclent, or the Governor or Rajpramulkh of a State, shall not be answerabl 12 andl performance ofthe powers _und duties of his offiee or for_any uct done or purporting fo be done by him. in the to any court fo the exerciy xercise qnel performance of seul duties: those power Provided that the conduct of the President may be bronght under review by any court, (ribunal or bedy appointed or designated by either House of Parliament for the investigation of a charge under article 61: Provided further (hat nothing in this clause shall be osiricting the right of any person to bring construed appropriate proceedings againsl he Government of India or the Government of a State. (2) No criminal proceedings whatsoever shall be in: stilted or continued against the President, ar the Governor of a State, in any court during his term of ollice. (3) No process fur the arrest or imprisonment of Ihe President, or the Governor of a State, shall issue from any court during his lerm of office. (4) No civil proceedings in which relief is claimed a President, or the Governor of a Slate, shall be instituted during hie term of office in any court in respect of any acl done or purporting to be done by him in his personal capacily, whether before or after he entered upor his vflice as President, or as Governor of such Stale, until the expiration of (wo months next tor the alter notice in writing has been delivered (o the Preside Governor, as the case may be, or Iefl at his office stating the nature of the proceedings, the cause of action therefor, he name, description and place of residence of the party by whom such proceedings are [a be inslituled and the relief which he claims. [emphasis supplied] 34, In Rameshwar Prased, cited above, the Supreme Court of India interpreted the Artiele 361 al paragraph 173 of the judgment, as follows: A plain reading of the aforesaid Article shows (hat there is a complete bar lo the impleading and issue of notice to the not answerable President or the Governor inasmuch as they a Jo. any Court for the exercise and performance of their powers anc duties. Most of the actions are taken on aid andl advice of Council of Ministers. The personal immunity from answerability provided in Article 361 does not bar the challenge thal may be made to their actions. Under law, such actions inelucling those actions where the challenge may be bused on the allegations of mala fides ure required to be defended by Union of India or the State, as the case may he. Even in cases where the personal mala fides are alleged and established, it would not be open to the Governments to urge that the same cannot be satisfactorily answered because of the immunity granted. emphasis supplied] 35. ‘Therefore, the Supreme Court of India held that the personal immunity under Article 367 s complete and therefore there was no question of the wophar President or the Governor being made answerable to the Court. The Court also relied on dicta in the Uniled States case of Richard Nixon [1982| USSC 140 which set out the theoretical basis for the need for sul immunity, when they said thats [hat the Governor enjoy: ‘The position in law, therefore, complete imnrunity. Governor is not answerable lo any Court for the exercise and performance of the powers and duties of his office o foe any uct cone or purporting to be doue by him in the exercise and performance of hose powers and duties. The immunity granted by Article 36 1(1) does not, however, tale away ity of s supplied] he action the power of the Court to examine the val including on the ground of mela fides. [empha 36, In Motswalledi, cited enrlier, the Court of Appeal of Botswana was similarly confronted with the interpretation of the immunity provision of the Constitution, Article 41(1), lo determine whether it applied in. the circumstances. 87. ‘The facts are that the President of Botswana, who was also the President of the culing party Botswana Democratic Party, suspended member of the said party. That meiaber filed proceedings in Court to set aside the decision 38. The Court al first i under Article 44/1) and (hat proceedings should not be instituted against stance found that the President was protected hin, The decision was appealed, and the Court of Appeal also found that the President was protected by the section, The Court said that ‘The obvious purpose of the provision was lo ensure that the Pee impeded or embarrassed by having to deal with lawsuits or civil sident while ea nt functions was not erying out bi import, claims... 39. The Court also stated that: . many democratic countries hac similar immunity clauses, justified on the basis that it was in the public interest that the commodale y befure the law) should ac democratic yood (equa another good (that the head of stale be not impeded in the of that democracy) execution of his duties in the s is distinguished from the 40. However, it must be noted that this cas 2 41 of the Botswana Constitution matier before the Court, in that Aréi allows the President Lo be sued in his official capacity wilh respect to civil suits, but protects hin in his private capacily from prosecution in civil proceedings. 41, Articie 182 of the Constitution of Guyana is differenlty worded. Further, the facls in Motswaledi, involved an act of the Presitlent in his private capacity, unlike in (he present circumstances involving an act in the Presidents official capacity. Article 41/1) of (he Botswana Constilution provides that: (1) Whitet ny person holds or perfarmns the functions of the office of President no criminal proceeitings shall be inntitated or continued against him or her in respect of anything done or omitted to be cone by him or her either in his or her official capacity or in his or her private capacily and no civil proceedings shall be instiluted or continued in respect of which relief is in tespect of anything done or omitted claimed against him or | w be done it his or her private capacity. [emphasis supplied| 42. ILis clear from the authorities above that. Lhe rationale of the immunity provision under the Constitution is to preserve the dignity of the office of the President and to ensuring the effective perlocmance of the fianctions of such high office. 43. Article 182(4) of the Constitution provides that the President cannot be made personally answerable, and/or is immune from prosecution while eases (0 be in olfice for acts done in the performance in office, and after he of duties as President 44, Moreover, the immunity as enshrined in the Constitution appears to be absolute and applics to both his official and personal capasity while in office as President, as in the Sri Lankan Constitution, per Article 35. entions of the 45. ‘This Court therefore does not ayree with the Applicant in theic interpretation of Article £82, Further, the authorities relied on by the Applicant, relate to the validity and reviewability of the thi acts of the President Court does nol find that the issue is whether these acts are reviewable, as clearly, they are. 46, ‘This Court maintains the position that the President is personally immune from the curial process in both civil and criminal proceedings. As highlighted! in the Tumuetcunde case, cited earlier, challenging the decision of the President, and bringing him before the Court, is separate and distinct. Further, Article (82 read in conjunction with section, 10 of the )§ supports this conclusion. CONCLUSION ON 1880 A: 47. ‘This Court therefore is of the view that the President carinot be named as a party to these civil proceedings. However, his actions in the circumstances, may be challenged through the Attorney General. {tis therefore ordered that the Presicent be removed as a party to these proceedings. ISSUE B: Whether the President exercised his discretion under Article 188(1) of the Constitution of Guyanu fairly, property, lawfully ond reasonably. Law and Analysis: 48. Article 188 of be Constitution of Guyana provides: (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 (o lawful conditions; (bJgrant to any person « respite, either indefinite, or for « specified period, of the execution of any punishment imposed on that person for such an offence; or ) Ibstitule a less severe form of punishment for any punis hment imposed on any person for such an offence; or Bina (@)remit the whole or any part of any punishment imposed on any person for such an offence or of any penalty or forfeiture otherwise due lo the State on account of such an olfence. (2) Subject to the provisions of the next following paragraph, the powers of the President under the preceding paragraph shall as be exercised by him after consultation with such Ministe: may from time to time be designated by him (3) In acldition lo the Minister designated generally under the preceding paragraph, a second Minister may, in the manner prescribed in that paragraph, be specially designated in relation to persons convicted by courts-martial under the law of Guyana; and at any time when there is a second Minister so designated, Ihe powers of the President under paragraph (1) shall, in relation (o such persons, be exercised afler consultation with that other Minister, [emphasis supplied] 49. Therefore, the President has a discretion to grant to any person a respite of the execution of any punishment for an indefinite or specified period pursuant to Article 188 (1)(b). This discretion of the President must be exercised in accordance with Article188(2) which requires that the President consult with the Minister designated by him before he exercises his powers under Article188(1). 50. Further, Articles 189 and 190 provides for an Advisory Council on the Prerogative of Mercy which may be coustilled by the designated Minister before advising the President but is nol obliged to do same or act in accordance with that Council's advice. [see Article 190(2)| lute and could SL. Historically, the exercise of prerogative powers was at nol be subject to juclicial review. However, the case of Council of Civil 1 the Civil Service [1985] AC Service Unions and Others v Minister f 374 made the exe: cise of prerogative powers such as the prerogative of mercy amenable to Judicial Review. ‘The Court stated that: “What determines whether the exercise of such a power is subject to the power of review is not its source but its suby -matter’. [Emphasis supplicl| See also R v Home Secretary, ex p Bentley [1994] Qi 349 and Henry et al v Ag of Trinidad and Tobago et «"t 2009 HC 298, at paragraphs 36 to 52. ‘Their Lordships comments in the case AG et al v Joseph and Boyce [2006] CC.I3 Ad are also worthy of nole, AL paragraph 26 of the ruling, they said: ‘The decision of the House of Lards in Re Council of Civil Service Unions ("the CCSU case") inarked a defining point in the approach of the courts to the judicial iewabilily of prerogative powers, {n the distant past, courts and (ext-book writers regarded 1, On this: the acts of the sovereign as ‘irresistible and absolut basis courts confined themselves merely to an inquticy into the existence and extent of prerogalive powers. Their Lordships’ speeches in the CCSU case emphatically endorsed the break with this approach. The modern view is that courts today will review a prerogative power once the nature of its subject-anatter renders it justiciuble. What is now pivotal to @ determination of the reviewability of a prerogative power is not o much the source of the power but rather its subject- matter. In the CCSU cas , Lord Fraser stated al page 399E: .Whutever their source, powers which ave defined, either by refer nee to their object or by reference ta procedures cise, or in some other way, and whether the definition is expres ed or implied, are in my opinio normally subject to judicial control to enst ve that they are not exceeded. By "normally" | mean provided that cousielerations of national security do nol require otherwise [enph: supplied] 53. In Yassin and Thomas v Attorney-tieneral of Guyena [1996] 62 WIR 98, with respect to the prerogative of merey, Fitzpatrick JA (as he then was) said al page 117A that: ise of the In this case justiciability concerning the exer prerogative of merey applies not to the decision itsell but to the manner in which il js reached. ft does not involve telling the Head of State whether or not to commute. And where the of natural justice ave not observed in the course of the es are laid clown leading to its exercise, which proces hy the Constitution, surely the ais the manner in which it is exerciser! may pollute the decision itself. emphasis supplied] 54. Further reliance was placed on the clicla in Ihe CCSU case, cited above, per Lord Roskill, who stated that: It is not for the courts lo determine whether a particular policy particular decision taken in the fulfillment of that policy is fair they are only concerned with the munuer in which those decisions have been taken. jomphasis supplied] 55. Further, Singh Jin Yassin and ‘thomas, cited above, described the constitutional provisions relating to consideration for the exercise of the prerogative of mercy as contained in Articles 188 Ww 190 as itutional safequards.’ 56. ‘The Jamaican case of Lewis et al v AG and Another [2000] 57 WIR cogative of , also held that the merits of the decision Lo exercise a pre mercy is not open to review by the Courl, but the procedure followed may be susceptible to judicial review. 57. In that case it was pointed out thal the Governor-General of Bahamas was required to act in accordance with the advice of the designated Minister in the exercise of the prerogative of mercy pursuant to Article 90/2) of Bahamas Constitution. Also, in accorlance with Article 90/2) of the Jamaica Constitution, the Governor-General similarly must act on the advice of the Jamaican Privy Council 58. The authorities therefore indicate that procedural inadequacies may be el of the exer gative powers a ground for judicial review in resp ise of prer As s has been seen, the exercise of any discretion must be done fairly and reasonably, with due regard to the priticiples of justice and with scrupulous transparency. 59, wu an address intituled, Judicial Review of the Exercise of Diseretionary Public Power, April 2017, given lo the Queensland Chapter of the Australian Institute of Administrative Lean, Federal Court of Australia Judge Anclrew Greenwood, noted: Brennan CJ in Kruger v The Commonweatth! observed that when a disnretionary power is statutorily conferred on a ause the repository, the power must be exercised reasonably be legistature is taken to intend that the dliseretion he 89 exercised. Thus, the power must, as a matter of consiruction of the statute xercised reasonably (unless the plain conferring the power, be words of the statute clearly and necessarily convey a different intention). [emp 60. Justice repository’s decision, and relying on the dicta in Minister for Immigration s supplied] jreeniwood wen! further in his analysis of the assessment of the and Border Protection v Singh [2014] 308 ALR 280 at page 45 of the report, that: where no reasous are given fur the exercise of a discretionary power, all a supervisory courl can do is focus on the outcome of the exercise of the power, in the factual context presented, and ass sess for ilself, whether there is an evident and intelligible justification for the exer ise of the power, keeping in mind, of course, that it is for the repository of the power, and the y of the $0, however, according to_tew. [emphasis © the power. The repasi repository alone, lo exerci power must do supplied] 61. GK. Thakker cited the dicta of Bhaytali u. {as he then was) in Khuciram Das v State Administrative Law, 2“! Ein, al page 718 of the text, of West Bengal |1975| 2 SCC 81, that: ‘There is nothing like unfettered discretion immune [rom judicial reviewabilily. ‘The (ruth is that in « gover “as unreviewable dis 4 (2997) 190 CLI 4 at page 36 Hf the Report 62. Thakker, cited above, cartinued at page 718 and 719 the The law has always frowned on uncanalised and unfettered diseretion conferred on any instrumentality of the State and itis the glory of administrative law that such discretion has been through judicial decisions structured and regulated. It is Wrue nol to be ¢ that abus umed lightly but experience of power has belied the expectation that discretionary powers are always exercised fairly and objectively. [emphasis supplied] 63. In another Indian Supreme Court case of DEC v Mazdoor Congress, MR [L991 SC LOL, Servant. expressed the need lo ensure there is a check id: on discretionary powers of high-ranking officials. He 90 ‘where is need to minimize the scope of the arbitrary use of power in all walks of life. (tis inadvisable lo depend on the however high-placed they may be. It good sense of individuals, is all the more improper and undesirable lo expose the precious rights like the rights of life, liberty and property to the vagaries of the individual whims and fancies, {t is tite to say that individuals are not and do not become wise because they occupy high seats of power, and good sense, cireumspection sud fairness does nol go with the posts, however high they may be. There is only a complacent presumption that those who occupy high posts have « high sense of responsibility, ‘The presumption is neither legal vr rational. History dees not support it and realily does not warrant it. In particular, in a society pledged to uphold the rule of lew, it would be both unwise anc impolitic to leave (have) any aspect of its life to be governed by discretion when it can conveniently and easily be covered by the rule of law. [emphasis supplied) 64, ‘therefore, the authorities ave clear that it is not for the Court to decide whether the grant of respite ought to he granted, but whether the manner in which the President exercised his discretion to grant the respite was proper in accordance with the Constitutional provisions, and not arbitrary 65. The factual context of the grant of respite bere a3 contained in the record before this Court, is against «a backdrop of a history of nom compliance by the state, with an order of Court, that there is 110 hope of ‘lions for extensions of time to being vacated by a higher Court. App! appeals hal been exhausted all the way to the Caribbean Court of Justice {CCA}, without any si 66. In fact, the CCU made it quite clear in ils assessment of the State's that the Attorney General ailed (o demonstrate how prospects of success there would be a miscarriage of justice, if an appeal is not permitted. [See AG v DIPCON Engineering [2017] COS 1A) 1. s November 2017 ruling, Guyana’s apex. Court made it a point to 67. Ini note at paragraph 1 of ils ruling that The judgment, delivered more than lwo years ago, may now be enforced. In Selby v Smith? (his Court observed that judgments must be carried into effect unless a court orders a stay and the court must act expeditiously in deciding whether W grant or refuse a stay. It can be ruinous for the holder of a money judgment, especially of a significant amount, to be Ieept out of his money and, worse, by default. |emphasis supplied] 68. Since then, and as recounted on the record, there have been 3 applications filed int an effort towards enforcement of the initial order of Justice Rishi Persaud. {Lis undisputed that cach attempt failer| to realise: compliance by the State, through its Finance Minister, Winston Jordan, pursuant to the provisions of the State Liability and Proceedings Act. 69. Amongst those, as recounted earlier, is an orcler of wandarous by the Hon, Chief Justice Roxane George SC, directing him (a comply with his statutory obligation and direct the payment of the judgment to the ¢ record reflects absolute non-compliance wilh every order Agiplicant ime. ‘This was followed up with another order by of the Court during th the Chief Justice di tiny him to obey the order of mandamus. Again, this order was not complied with 70. ‘This culminated with the committal order hy Justice Priyc Sewnarine- Beharry in June 2019. Up lo this point, the Applicant has been making strenuous efforts to enforce it judgment for just aboul 4 years, without 2 (20x7) CCH 33 (A) at 135) Bayh ar success, Even afier the committal order, a higher Court has cefused the Attorney General's application to stay the committal order, ciling the very reasons by the CCTabove, 71. At this juncture, it is important to appreciate for legal and evidential context, the fundamental concepts of the rule of Jaw and the separation of interplay between the role and powers doctrine. This is so because of Uh function of the Judiciary in circumstances within its province (enforcement Orders), and the reactionary decisions of the Executive branch, as demonstrated in its continued non-compliance with orders of Court, culminating with the grant of respite, whiel: leads ineluctably to the coachision that the State is acting in bad faith. RULE OF LAW & SRPARATION OF POWERS: Annan, has 70. Past Seorelary-General of the United Nations, Kofi described the rule of law as: a principle of governance in which all persons, institutions and entities, public and private, in the State itself, are aceountible to laws that are publicly promulgated, equally enforced and independently cdjadieated, and which are consistent with international buman rights norms and standards. It requires, as well, measuces to ensure adherence to the principles of supremacy of law, equatity before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision- making, legal certainty, avoidance of arbtirariness and procedural and legal transparency.’ |emphasis supplied] ‘ordhan in his text the Jadicial Review 71. ‘The noted author Michel Handbook, 4" edition, wrote at paragraph 7.2 - 7.3, thus: Rule of faw/separation of powers. The rule of kw is a first principle of constitutional theory. Together with the separation of powers, il explains why the Courts’ supervisory role is one : Covet the rae Kaw gue e-angatioveal jngtige ws tbe (Hor pars cone aol 72. 73. and how | of crucial constitutionel importance, unt and the Crown are accountable to the Courts. The rule of iow is a theme which pervades the law of judicial review. fis not found in any statute, nor any constitutional document such as a wrillen constitution, Rather, it has evolved through lime ax a selFrecoguitivn by Courts of « eentrat i Principles of legality. As if hy way o vereign r 1 spin-olf from the rule of se ‘the principle of legalily’, law, the Courls have come to recogni representing a further counterbalance to legislative supremacy. thal limitations are recognized within enabling The idea i statutory powers, lo defend a consiitutional imperative. ‘The focus has tended to be on protecting basic rights, at least absent plain words (or necessary implication). But there is an unmistakable wider potential of constitutional principles of legality capable of reaching beyond fundamental rights as impervious even Lo plain words. [emphasis supplied) Mark Elliot writes in his book, The Constitutional Foundations of Judicial Review, 2001, ul page 14, thal it can be seon that, in relalion to juclicial review, Ure notion of constitutional legitimacy possesses wo facets. It requires a Litutional principles deur fo as well as a nurrower, more technical examination of the legal be tigation of the con ad, contextual inv which may justily evrial supervision of c parti m of power, basis of review in order to ensure (hal judicial control can be nationalized in u legally coherent ancl constitutionally acceptable manner... jemphasis supplied] Billiot, continues at page 98, ciling Christoph Forsyth’s article intinued, Of Fig heaves and Fairy Tales: The Ultra Vires Doctrine, the 8 CLI L Sovereignty of Parliament and Jusicial Review, [1996] where he wrote: Parliament must therefore be talen Lacilly to have approve the fashioning of broad grounds of review, Hence legislative intention is relevant not because it car be divined and turned into speci 74 75. principles of review, but because ‘the legislature is taken to have granted an imprimatur to the judges to develop the law’ themselves. ‘This analysis is (o be welcomed to the extent that it provides an alternative (0 the unconvincing dogma of the Lraditional ultra vires doctrine, which postulates a more simplistic frameworls within which the courts merely identify and enlorce those Unwritten limits on discretionary power which Parliament is taken to have intended. [emphasis supplied] Charles-Louis de Secondat, Baron de La Bréde et de Montesquieu, the French political philosopher, in his treatise, De fesprit des loi (The Spirit of the Laws}, 1748, translated from French to English by ‘Thoraas Nugent in 1750, is famous for propounding the separation of powers doctrine. He wrote: When the legislative and executive powers are united in the same person, or in the same boty of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again there is no liberty if the judicial power be not separated from the legislative and executive powers, Were i| joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with violence anc oppression Miserable indecd would be the case, where the same man, or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of indivichuals. In commenting on the importance of the doctrine of separation of powers, Thakeleer (ciled above) noted that ils value Ties in the ‘cheeks and mn balances’ which are necessary to prevenl an abuse of enormous powers of the executive. At page 45 of the lext, he writes: The object of the doctrine is to have ‘e government of law rather than of official will or whim’, Montesquieu’s great point was aie that if the total power of government is divided among autonomous organs, one will acl a check upon the other...Again, ine that the almost all the jurists accept one feature of this doct judiciary must be independent of ancl separate from the remaining organs of the government, viz. legistalure and executive. ‘The Report of International Congress of Jurists held at New Delhi in 1959 states: An independent Judiciary is an indispensable requisite of a free sociely under the Rule of Lav. Such independence implies freedom from interfererice by the Executive or the Legislature with the exercise of the juc If there is one bulwark that guards the [recom of the dicial function. average citizen, it is the Inw court, Courts of justice are more important than even the military lo guard the freecorn of the country and of the individual or for enforeing an adherence to the rule of law. |emphasis supplied] 76. In V.G. Ramachanchun’s Administrative Law, 1984, al page 27 of the text, the author opined: Even the suprenmu: law-making Parliament of the land exalts itself when it respects: by convention the judicial pronouncements of the Supreme Court of the land in its interpretive jurisdiction. 77. Jk is therefore important for the maintenance of civility and respect for the rule of law, that the functions or actions of the three institutions of the State are independent of each other, whilst at the same time fostering partnerships for good governance and due administration of the rule of law. 78. Having said that, there were no reasons proffered by (he President for the grant of respite to explain at the time, why the respite was issued. His Excellency may have had sound grounds upon which he based his decision. ‘The gazetted instrument of respite merely stated Lhat it was granted ‘until all appeals una remedies available to him and the State have been exhausted’. 79, Indeed, there is no stalulory duty imposed on the President to give reasons for his decision lo grant the respite. ‘Therefore, the absence of r sons, does not automatically vitiate the exercise of the dis has, where no duty (o give reasons is spelt out in the legislation. 80. However, the Court is cognisant of the decision in J v SOS ex parte Lonrho [1989] 1 WLR 525, and more particularly at page $39 of the report where Lord Keith opined thet for a de ‘The absence of reasot ision where there is no duty to give them cannot of itself provice any support for the suggested irrationality of the decision. The only significance of the absence of reasons is that if all other known facts and circumstances appear to point overwhelmingly in favour of « different decision, the decision-maker, who has given no reasons cannot complain if the court draws the inference that he an no rationed reason for his decision. [empheisis ay 81. Also, in the case Re Carl Hanoman GY 1999 HC 1, the duty lo give supp reasons for exercise of discretion was explored by the High Court of Guyana. Il was noted thal there was no definitive position on the question of need for reasons but that such a duty to give reasons was enhanced by ‘s¢ effects of the decision the particular circumstances stich as the acve and whether it is obvious that reasons ought to be given. [See also Linton ©. Allen v His Excellency the Right Hon. sir Patrick Allen [2017] JMSC Civ 24] 82. Undoubtedly, His Excellency, the President, is imbued with a diseretion by Article 188 of the Constitution to consider the grant of pardon of the conviction of any offence, to any person. By that Article, he may also consider the grant of a respite of (he execution of any punishment imposed on a person who commits an offence. This discretion is wide, as the Pre © or a specified sient can grant that respite either for an indetini period 83. Further, this Court is of the view that there is no greater illustration of the high degree of responsibility which (he President has in the exercise of his discretion when considering the application of Article 188. 84, Suilice it to vay, no discretion exercised pursuant to any statutory solute. The Privy Couneil in Mohit v power, as in (he grant of respile, is al The Director of Public Prosecutions of Mauritius {2006| UKPC 20, concluded at paragraph 20 of judgment that In R v Panel on Take-overs and Mergers, Ex p Datafin PLC [1987] QE 815, 847, Lloyd LJ observed that “If the source of power is a statute, or subordinate legislation under a statute, then clearly the body in question will be subject to judicial review" 85, Joven the Cons: : in relation to acts done pursuant to the authorily derived from 233(8) slates: jlution ilsell preserves the supervisory jurisdiction of the Court provisions, and otherwise. Article Subject to arlicle 227(6] and article 216(12), ne provision of this shell not be subject tion thal any person or authority o the direction or control of any other person or authority in the ustrued as pr elation to_anu het exercise of any functions Iuding court_from_e: question whe ercised those functions in accordance jon or any applied} other teuw. [emphasis 86. In spite of there being no duly (o give reasons for the exercise of this discretion, there can be no doubt that this high power of a pardon, or the grant of respite, of a term of punishment en convietion of an offence at law, imposed by a Constitutio ally created, protected ancl independent tribunal, carmot be activated on a whim, or arbitrarily, and without procedural and legal (ransparency. 87. Whilst no reason was altached to the decision, Ms Roxanne Barratt, who is the Principal Assistant Secretary (General) of the Ministry of the Presidency, being cluly authorised by the State in these proceedings, deposed! on the recortl or the Stale’s behalf that ‘as a consequence of the failure to obtain a Slay of lixecution of the Order for contempt against the Minister of Minance personally, the President of Guyana neted on the aclvice of the Prerogative of Mercy Committee pursuant to article 188 of the Constitution of Guyana to issue a respite on behulfof the Minister of Finance Mr. Winston Jordan both. in his official capacity and private eapacity.” ara 88, ‘This Court is of the view that there can be no other conclusion, but that the President exercised his discretion under Article 188, to grant the respite, afier the Judiciary pronounced its devision to refuse the stay of execution of its committal order. 89. To re about + years of the i nitext, this commiltal order was made afler a period of ) the fal orcler of juclgment in favour of Ue Applicant, and alter 2 separate enforcement orders obtained by the Applicant, which were nol complies with by the Stale. Further, there were also applications: filed in the Court of Appeal and the Caribbean Court of Justice, all of which were determined in favour of the Applicant. 90, Further, Ms. Barratt, in making reference to the President acting on the advice of the Prerogative of Mercy Committee, did not substantiate same on the record, 90 as (9 assist the Court in ils clear supervisory jurisdiction to determine whether the basis for the decision was done in a fair, proper, reasonable, just and rational manner, in the particular circumstances of this case. 91. What Assistant Secretary (General) of the Ministry of the Presicency. This Court left before this Court is the explanation by the Principal can only reasonably conclude that the President would have acted to overturn (he decision by the Judiciary, when it refused a stay of execution of the committal order. ‘This is apparen( as gleaned from the instrument published in the Olficial Gazette slating, thal the respile was granted until all appeals and remedies available to him and the State have been exhausted. 92. Ihgo respite of the execution vf the punishment imposed va Winston Jordan. without s aying (hal the President has the discretion to grant the However, this derision must be exercised fairly and lawfully, respecting the rule of law and the separation of powers doctrine, 93. 4 anil after a Court would have considered ancl refused the application for a

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