By Maxwell E. Edwards

Dear Editor,
ANIL Nandlall in some indecent mischievous machination to bring the learned Attorney

General into public odium and ridicule, has arrogated onto himself the role of spokesman for the judiciary and held an inflammatory press conference at the PPP’s headquarters (Freedom House) on March 25, where he again accused the AG of threatening the judge, having previously done so on his Facebook page on the afternoon of March 23 (SN March 26, captioned “Nandlall maintains that the Judge was threatened”). And yet, at no point in the verbal exchanges between the judge and the AG (whether you believe the AG”s, the judge’s or even Mr Nandlall’s version of events) did the Judge use the words: “Are you threatening me Mr Williams”? or, any words to some such similar effect.

Nor did the Judge say: “Mr Williams, you are insulting me” or use words to some such similar effect. And the judge must be taken to know a threat, or insult, when he sees or hears one. So in this matter on the judge’s or the AG’s version of events, there was no threat; no insult. But were there words uttered that amounted to contempt of court? In the adversarial setting of a court, the law in its wisdom, recognises that tempers are bound to flare – as between lawyers and lawyers, and occasionally, as between the lawyer and the judge or magistrate. This goes with the territory.

Yet, the judge must not only be impartial, he must appear manifestly and undoubtedly to be impartial. So,did the judge take any issue or umbrage with Mr Nandlall’s irksome interruptions or disruptions of which the AG has told us? Interruptions being a very different thing all together in the forensic process, from legitimate objections ruled upon by the judge upholding or over- ruling them as the case may be. What are the statistics: how many of Mr Nandlall’s objections/interruptions were over-ruled, upheld, not ruled upon at all? There appears to me to be a somewhat Orwellian treatment meted out to Mr Nandlall in this matter. That Orwellian approach has made Mr Nandlall “more equal than” the AG in Justice Holder’s “my court.” So the junior counsel with accustomed intransigence could feel bold enough at his Freedom House press conference to say in absolute terms “… this is what I will continue to do.”

And yet by his mischief of sensationalising, and politicisation by his insidious allegations of threat to the judge’s life, the wound has already been inflicted on the hapless AG; add to this comments made by the Leader of the Opposition, Mr Jagdeo, the Indians are circling the wagon – to use an American historical metaphor (see “PPP expresses concern over AG’s alleged utterances to High Court judge” KN, Thursday, March 28). Mr. Nandlall has transformed a first-aid matter, into one now (to use a medical analogy) requiring intensive care treatment and major surgery. Had the matter remained one of perceived “disrespectful” conduct (the judge’s version) or, anecdotal assertiveness (the AG’s version) John Public would at worst, have been mildly indifferent to this matter. But Mr Nandlall must not be allowed to succeed in his machinations and contrivance. And he would succeed if, what the Honourable Judge has complained of as “egregious statement”(but, is, upon sober, detached reflection at its highest, arguably an unfortunate tactless discourtesy by the learned AG), becomes elevated into a really serious allegation of a contempt of court; coupled with a demand for an apology by the AG.

And I dare say that the Hon Judge must be, respectfully, reminded that a discourtesy,or disrespect (perceived or actual) even one perceived to be offensive, is not, and has never been decided to be contempt of court by the highest courts for settling these Common Law matters (i.e the House of Lords, of England; and the Privy Council). That is the position at law (the learned reader is referred to the well-known West Indian case of Maharaj V AG (No1) and the cases cited therein). And, was it right, or dignified, or respectful for the judge, upon being asked by the Attorney General of this country, and a Senior Counsel and the head of the Bar, a forensically permitted question as to whether he (the judge) had recorded the witness’s evidence, to demur to the AG that it was “…. my court.” With the utmost of respect, such a retort to a legitimate enquiry was tactless and disrespectful of Guyana’s Attorney General. In my outspoken comment: that was plainly wrong. Was it that tactlessness that precipitated the “egregious statement”?

Just spare a thought for the hapless AG. As I analyze the sequence or timelines of events that caused the Judge to “immediately” rise from the bench, two things are manifest (i) the judge had unjudicially excised (“crossed out”) evidence elicited in cross-examination by the AG that was favourable to the AG’s case (ii) the judge had, prior to the so-called “egregious statement” (which we are made to believe was the proximate reason for his rising from the bench), already decided to adjourn the hearing of the matter. It is a matter of some considerable curiosity that during the entire business session from 9 am to 12 pm, amidst all the agonies of the moment, considering particularly Mr Nandlall’s “interruptions” (Mr Nandlall calls them objections, perhaps some were) no complaint whatsoever was made orally to the AG as regards anything said or done by him, nor, I presume, nothing was recorded pointing to or suggesting any misconduct or disrespect by the AG. So, I for one is not persuaded that it was the AG’s so called “egregious statement” that caused that abnormal rising from the bench. Coincidentally, it may have just been the proverbial last straw.

For legal reasons, (explanations of which a letter of this type is an inappropriate place to adumbrate), I would in a nutshell say that the judge’s explanations for his excising that evidence are indefensible (re-examination should have been invited to clarify any uncertainty) and if such excising, as it appears, is what precipitated the so-called “egregious statement” then, with respect, this is a case of contributory indiscretions of which a major proportion is to be borne by, or attributed to, the Hon Judge. Suffice it to say that every cross-examiner knows that follow-up questions are based on the answer elicited and assumed recorded by the court,where the answer (in this matter the “yes” from the witness, crossed out by the judge) is relevant to the point of fact the cross examiner (that is the AG) was seeking to establish as part of his case. The more I read the newspaper extracts of the judge’s conduct, his dereliction in recording the evidence elicited by the AG’s cross-examination, the more I am convinced that the beleaguered judge’s explanation as to crossing out the witness evidence, is indefensible. It is not that the judge thought that the evidence was hearsay or somehow otherwise plainly inadmissible.

I have the benefit of having presided as a magistrate for some 12 years. So, in this matter, I can write both theoretically and experientially. A lawyer (now recently deceased) after I had ruled against him, I recall, as he was leaving the court, quite audibly blurted out “I gon mek he he wuk.” And that was a mild case of disrespect compared with what I endured (for political reasons and otherwise) when I was the resident magistrate on the Essequibo coast – 2005 to 2008). I never asked for any apology. I never sought self-vindication.
We all have different levels of judicial restraint and tolerance. We all have different idiosyncrasies. But if I had allowed those irksome moments to cause me to respond idiosyncratically, then, perhaps I was not temperamentally suited for judicial office.
The AG’s constitutional status and leadership or head of the Bar carries not only high responsibilities; it carries concomitantly, the right, and entitlement, to be respected by both Bench and Bar alike. That is the unwritten rule. And that is why in spite of all the centuries of advocacy by Attorneys General throughout the Commonwealth Common Law jurisdictions there is no case (reported or unreported as far as I am aware) of an AG being charged with contempt; nor being compelled to issue some apology to a judge.

No precedent exists anywhere. So, there must be some good character disposition that operates in the Attorney General’s favour when allegations of “disrespectful” conduct are made against him, even if made by a judge. The AG had maintained that he had no intention of disrespecting the judge. Those of us before whom he has appeared frequently enough know of his assertiveness, even (as he was then) as a junior counsel. Assertiveness in our courts is not some vice; it is a virtue. A fortiori, as an Attorney General. It is plainly wrong for any punishment to be contemplated, much less meted out to him for any such assertiveness as a method of suppressing the method or conduct of his advocacy.

It is a matter of some considerable curiosity that at no time in the agony of the moments during the verbal exchanges between the AG and the judge did the word “contempt” or “out of order” emanate from the judge’s mouth. Every judge immediately discerns contempt in the face of the court when he hears one. It is almost self-evident. It requires no ex-post facto cogitation or consideration. The subsequent contention of a contempt seems more an afterthought, than a conviction of a view of such an occurrence. I must emphasise here the point of there being no prior reprimand or rebuke of the AG during the business session.

The Guyana Chronicle report under the caption , “Judge wants AG to apologise” (Wednesday, March 29, 2017), also KN captioned, “Judge says AG disrespectful to him in Court” 2017-03-30, contains extracts from the judge’s letter of complaint to the chancellor, (ag) that in my considered view do not even tend to show a prima facie case of contempt, much less to be evidence from which the judge can feel sure that the AG was guilty of the criminal offence of contempt in the face of the court, of which the particulars that would have to be supplied to the AG, must and could only be the words: “I could say what I want to say and when I want to say it, I have always been like that”; the so-called“egregious statement.”
The first and most crucial aspect of this is the consideration that the AG is stating or intending to state a description or characteristic of himself. By what logic, or principle, can a description in ordinary English Language of one’s self be contempt of court, even more so, it is non-responsive. I have always thought that the law of criminal contempt (which in my tenure on the Bench I had studiously researched), requires that something be said or done in relation to the judge suggesting corruption, dishonesty or lack of integrity on the part of the judge. Are those words constituting the “egregious statement” reasonably capable of any such suggestion? Not at all.

Editor, permit me to return to Mr Nandlall’s scandal about the threat to the judge’s life, which but for the public outcry which his scandal has engendered, would be simply laughable. Are we to believe that the learned AG suddenly went berserk and threatened the High Court Judge with death, not in some private telephone conversation, but in open court in full view and hearing of others? And how? By simply recalling and recounting a similar experience with a magistrate, now dead, about the accuracy of the recorded evidence? How is death to be? By voodoo? In my by-stander’s view, a tangled web of deceit is being weaved. Mr Nandlall’s consistent, vulgar abuse (in both print and electronic media) of this AG is a notorious fact. This is just another episode in Mr Nandlall’s playbook as he practises to deceive. Besides, how curious that Mr Duncan’s counsel (Mr Nandlall) has a fetish with threats. Readers must recall the infamous tape recording of Mr Nandlall (AG at that time) in a telephone conversation with a Kaieteur News reporter, Leonard Gildharie, issuing gun threats against KN.

Casualty (that is the AG) apart, the irony of the matter should not be lost sight of: it is the AG who would constitutionally have the burden of representing any judge against whom (it is not inconceivable or far-fetched) legal proceedings may be taken, ex officio. And what if in such an event the presiding judge in that case appears to be lax in recording vital evidence elicited by the AG (in cross-examination as appears to be the situation in the instant matter) on behalf of the judge he is representing. A case can be lost by such laxity. Discrepancies (and inconsistencies) in a witness’s evidence affects its weight and value. I suspect and would suggest that the learned AG is demonstrating the type of zeal in his advocacy in this matter, as is commensurate with the gravity and seriousness of it; involving as it does, not only the probity of the official constitutional act of the Honourable Prime Minister, but also that of His Excellency the President, coupled with the political opprobrium loss of his case portends. Unwittingly, the judge by the unusual course he has taken in this matter, would be suppressing a method of advocacy which he considers rightly, or wrongly, disrespectful, which involves both the Prime Minister and the President.

Surely, such exceptional circumstance cannot be lost on the judge. And he appears now to have mistakenly persuaded himself, that a criminal contempt has occurred.I am reminded that just some such mistaken persuasion occurred in the Maharaj case supra, when the lawyer had accused the presiding judge of “unjudicial conduct”; the judge had charged and tried the lawyer and committed him to prison for contempt for such utterance, and that the Privy Council in spite of their Lordships being of the view that the lawyer had acted “discourteously”towards the judge, ruled in favour of the lawyer and awarded him damages (i.e. money). And just consider that in this Justice Franklin Holder matter the “egregious statement” is not even (as I have pointed out above) any accusation made against the judge. As devil’s advocate, I would say this: I have written with the benefit of the AG (then a junior counsel) being a frequent appearer in the courts in which I presided. He can be as assertive in the pursuit of his client’s cause, (the common lawyer’s characteristic) as he can be conversational in his disarming humour(a rare virtue).

And finally, about an apology and the intimation of the judge that in the absence of such (as reported) “he will not sit to hear him as an Attorney-at-Law in any matter whatsoever.” I dare say that such a course portends a constitutional crisis between the judicial and the executive branches of government. The AG has a constitutional right and duty to appear and be heard on behalf of the state, and its officers. That right is grounded in the constitutional doctrine of public interest. That constitutional right cannot lightly be denied him. I wonder whether by the events which has happened in this matter the judge has not unwittingly disqualified himself from any further hearing of this matter. But the laws of contempt of court (Cap 5:05 – as an existing law) which one day may require serious consideration as to its constitutionality (unless interpreted with necessary modifications, adaptations etc) in terms of article (144) (1) and (2) of our Constitution as to “fair hearing,” cannot be used to suppress a method of advocacy which the judge considers “disrespectful.” And no worthy AG can be expected to compromise his well settled Common Law right against self-incrimination, if the effect of an apology would be to lead to a perception that he is guilty of some serious wrong. He is not.

By Maxwell E. Edwards