HIGH Court Judge, Justice Franklyn Holder on Monday recused himself from hearing the Carvil Duncan case, saying that he had made the decision even before the Prime Minister, Moses Nagamootoo had expressed disquiet about him continuing the matter.
Before a packed courtroom, Justice Holder said, “I find that it will be prudent, judicious and in the interest of the administration of justice that I recuse myself from the case.” Holder had accused Attorney General and Minister of Legal Affairs Basil Williams of being “disrespectful” and “insolent” in his court on March 23, 2017;a claim which the AG has dismissed. Williams did not attend court on Monday morning but instead was represented by Attorneys Judy Stuart and Coleen Liverpool;both of them lawyers within his chambers.
Given his recusal, the matter has been sent to acting Chancellor of the Judiciary,Yonette Cummings-Edwards for re-assignment. However, before addressing both attorneys,Justice Holder enquired from Stuart whether the Attorney General would be appearing before him. When he was informed that Williams was not going to appear, Holder described his absence as unfortunate.

In a prepared speech, the High Court Judge told the attorneys that his decision to recuse himself from the case was not taken recently. He explained that his decision is not as a result of “skewed, illogical and improper reasoning expressed by some and reported in the press,but is one deeply rooted in my recognition and appreciation of what is required in the circumstances and in the interest of the administration of justice,” he added.
Prime Minister Moses Nagamootoo, a party to the case, last week called on Williams to request that the Judge recuse himself as he fears he may not be given a fair hearing. In a letter released on Friday, the Prime Minister said “Due to an alleged incident between yourself and Mr. Justice Franklyn Holder in His Honour’s court on March 23, 2017 in the above mentioned suit and His Honour’s subsequent petition to the Honourable Chancellor against the Attorney General on the issue of the alleged incident, I am of the opinion that neither the State, nor l, will receive fair hearing in the matter.”
The Prime Minister believes that Justice Holder had the power to handle the alleged incident between himself and Williams amicably in Court, instead of retiring to his chambers without a formal rising of the court. He also contends that the petition made by Justice Holder to the acting Chancellor for Williams to “compulsorily apologise in open court before continuation of the State’s matter” as well as the forwarding of the said Petition by the acting Chancellor to the President who is also a party to the suit, would result in him being prejudiced in the matter.

On March 23, the last day of hearing in the Carvil Duncan matter, the Judge vacated his bench during an exchange between him and Williams without adjourning the matter. Since that incident, the Judge wrote the acting Chancellor on the matter and demanded that Williams apologise,as he was in contempt of court.
Justice Holder on Monday said his withdrawal from the bench without adjourning the case was in an effort to give both himself and Williams time to reflect. He maintained his position that the Attorney General was disrespectful and stated that he did not err when he rose from the bench without adjourning the case or citing Williams for contempt in court due to his “insolent” behaviour.
“When I rise from the bench on the 23rd March, 2017 without citing Mr. Williams for contempt of court for his insolent and disrespectful behavior,(it) was a decision I made not in error, through oversight nor owing to my unawareness of the availability of that option to me. I do not now regret it as it accords in my respectful view with contemporary learning on the issue,” the High Court Judge stated.

He said too that Williams as the head of the bar, attorney general and Senior Counsel was afforded enough time to reflect and apologise. “It was hoped that it would have allowed him time to reflect on his conduct and give him an opportunity to do what was fit and proper in the circumstances so as to avoid him bringing the administration of justice into disrepute,” said Justice Holder. The Judge made it clear that the utterances made by the Attorney General and taken individually may not be deemed contemptuous but collectively represent a contempt of court.

“These statements of Mr. Williams that I have recounted,taken individually may be perceived as insolent behaviour and not necessarily contempt of Court. However, when considered collectively and within the time frame that they were made, these statements prima facie constitute contemptuous behaviour on his part,” he added.
He made it clear that Williams has turned the issue into a political one when there was no need to and noted that the Attorney General instead of wearing another hat, moved weeks after the confrontation to “systematically flip the script and to spin this matter in a manner now common in other jurisdictions, to the extent that it has now in my respectful opinion become politicised and irretrievably infected with the perception of bias,” said Justice Holder.
Judges are independent of politics and as such he stated emphatically that “The Court is not a forum for politicking” and must remain the guardian of the Constitution, objective and evidence-based.

Meanwhile, former Attorney General Anil Nandlall, attorney representing Duncan, expressed disappointment by the judge’s actions noting that by way of his action the public perception of the judiciary would be skewed. “I am disappointed that he has done so, not because I have any interest in this judge continuing to hear the matter, because the appearance out there would be there that the judiciary buckled under executive pressure.”
Additionally, the former AG said the appearance is sometimes as important as the reality and stressed that while the judge said his decision to recuse himself is not as a result of an application for him to so do, “the perception that would be convened is that the judiciary did not stand firm in this matter.”
“But the opportunity still exists for the judge to exercise that exceptional power of contempt and kill that public perception,” he added. That aside, he said he was happy the judge was firm, and unambiguous that the AG committed contempt in the face of the court and that as the judge in the matter, notwithstanding the fact that he came off the bench without citing the AG with contempt, he has the power to cite contempt when he deems it fit. “I am disappointed that the judge fell short in saying how he will exercise that power in relation to this incident,” said Nandlall.