UNDER our constitutional doctrine of separation of powers, the judiciary has its power to convict, and impose sentence or punishment for criminal offences. The executive branch, of which the President is the Supreme Authority, has its power to grant a RESPITE (article 188 (1) (b)), or a pardon (article 188 (1) (a)), or a substitution (article 188 (1) (c)), or a remission (article 188 (1) (d)). Of any such sentence or punishment as the President, in his own deliberate judgement considers appropriate, in the national or public interest after consultation with his designated minister.
On 8th July, 2019, the President exercised that constitutional power when he granted his senior Minister of Finance, Winston Jordan, a respite in respect of a sentence of imprisonment of 21 days imposed by a High Court Judge on Jordan in his personal capacity for non-payment of a contractual debt adjudged by a Court to be owed to Dipcon by the Government of Guyana. This, the layman might rightly think, is mind-boggling. Since when, and by what system of law, the layman would rightly exclaim can a servant (which at its highest is what Winston Jordan is in relation to, and with the G.O.G.) be liable or responsible to pay the contractual debts of his master or principal. A graver injustice can hardly be imagined. The law, it has been said by high authority, can sometimes be an ass, but can it be so asinine!
Yet, the Full Court of the High Court to which Winston Jordan must have with confident expectation applied for a stay of execution of the 21 days sentence for contempt of court for not having paid the G.O.G’s adjudged debt, and in so doing, restore to him justice in the interim, shockingly refused his just and well-founded application for a stay. To say the least, were Winston Jordan (who in reality is the Minister of Finance in the David Granger-lead APNU+AFC Coalition Government) to be imprisoned, it is hardly conceivable that the President could have retained him as his minister, without attracting both national and international opprobrium; and the consequences are likely to be most disruptive in our financial and economic affairs at this most critical juncture.
We contend that the Court’s refusal of an interim stay of execution, in the special circumstances of this matter, constitutes an abdication of responsibility conferred upon it by law. What then was His Excellency President David A. Granger to do? Wash his hands like Pontius Pilate? Could we, the Guyanese people, have expected the President, also, to act in abdication of his jurisdiction and responsibility conferred upon him by not just any law, but the supreme law of this Republic? Plainly not.
We contend that it was not only the right of Winston Jordan to be granted a respite of the execution of sentence or punishment of 21 days in jail, but it was the obvious duty of the President to do so. There is no dearth of case law authority on this matter in the context of the Constitution such as ours. We refer to the analogical situation of pardon (article 188 (1) (a)) in the Trinidad and Tobago case of Phillips and Others v. Director of Public Prosecutions and Another (1988) 40 WIR 4/0 P.C. That case involved a Pre-trial pardon following an attempt to overthrow a government.
The court matters regarding Winston Jordan’s guilt or innocence are under appeal and, so, are still subjudice. And so, Winston Jordan is entitled to enjoy his constitutional presumption of innocence. So, let us be pellucidly clear: the President’s grant of respite involves not the slightest degree of usurpation of, or intrusion into the Judiciary’s power or jurisdiction. The two branches’ respective powers are separate and mutually exclusive. The Judiciary finds theirs in case law judges have historically made for themselves to protect and maintain their dignity and the authority of the Courts. The judiciary exercised theirs. The President exercised his– as given to him not by case law, but by the supreme law itself. The framers of our Constitution must have materially anticipated injustices of the type meted out to Winston Jordan, when they drafted article 188.