Dear Editor,
JUDGES are concerned only with the validity of legislation; they are not concerned when adjudicating on the constitutionality of legislation, with the wisdom, political desirability or fairness of that legislation. As a corollary, a litigant’s only concern when challenging legislation, ought to be whether it is constitutionally valid. Government responds to societal ills with legislation to cure the mischief. Popular examples of legislative response are the Domestic Violence Act (DVA); Trafficking in Persons Act (TIP), Anti Money Laundering and Countering the Financing of Terrorism Act (AMLCFT).

Legislative responses are part of the constitutional democratic process in the pursuit of peace, order and good government. The APNU+AFC Government’s response to the mischief of serious corruption in respect of divestment of state lands and other assets was the enactment of the State Assets Recovery ACT, 2017 (SARA). And just as how the DVA, TIPs, AMLCFT, inter alia, are operational to cure the mischief, so should SARA, two years after its enactment. But an, as yet, undecided court challenge by Ramon Gaskin to SARAs constitutionality is impeding the recovery efforts of the director of the agency established by SARA. The director/agency has not contributed whatsoever to this delay. So, it is this long delay by the court in not yet deciding the Gaskin challenge that impels comment.
I argue, that while it was Ramon Gaskin’s right to challenge the constitutionality of SARA by his court action in July 2017 (two months after SARA became law and in force on May 4th 2017) in the High Court, it is equally, the people’s right as part of the democratic process, to have had a determination by the High Court of that constitutionality question, by now (2019). That delay in its determination, is with the greatest respect, inordinate, and long.

That great English Judge Lord Denning, MR, hated long delays. Even laymen such as the great writers Shakespeare and Dickens hated long delays. I quote Lord Denning in his book “The Due Process of Law” at page 92: “All through the years men have protested at the law’s delays and counted it as a grievous wrong hard to beat. Shakespeare ranks it among the whips and scorns of time. Dickens tells how it exhausts finances, patience, courage and hope.”

I pause here to draw special attention to the poignant long title of SARA which relevantly reads thus: a An Act to establish a State Assets Recovery Agency in consonance with the United Nations Convention Against Corruption…to RECOVER through Civil proceedings State property unlawfully acquired…to engage in international cooperation in the recovery of stolen assets of States…”

Regionally, the Belizean authorities pursue recovery unimpeded. We should too. Our patrimony is involved. In the Caribbean Court of Justice (CCJ) in the case of Martin v. AG, 78 WIR 51 Bernard, J (our former chancellor) made this very poignant and instructive observation viz a At the end of the day it is the duty of the attorney general to preserve the patrimony of Belize by RECOVERING financial loss from those allegedly responsible for undervaluing national lands in their quest for personal financial gains.”

Under SARA, Parliament, in its wisdom and fairness, has entrusted that duty, not to our AG (a hybrid political functionary), but to the autonomous agency and its director. (the Director for the time being is professor Clive. Y. Thomas).

I return to the crux of this letter: the impeding by the law’s delay, of the director’s efforts to recover (such assets as may be found by the courts to be recoverable) as required by SARA. As I alluded to above, Gaskin’s court action (by FDA) challenge was filed in July 2017. Fixed date applications (FDA) by their very nature are to be determined with expedition. That is the overriding objective of the Civil Procedure Rules (CPRs) which, newly introduced that FDA procedure into our legal system in 2016. With the deepest of respect, a judicial delay of two years plus, and yet no decision as to the (un)

constitutionality of SARA, cannot be expedition. It is the negation of expedition. Nor, is it as if such inexpedition does not have grave and serious consequences for the agency and its director’s recovery efforts. It has. It seems to me, a classic case of: Justice delayed, is justice denied. The evidence is empirical. Court recovery proceeding against, GBTI, and QAII (both has received wide newspaper reportage) cannot proceed because the Gaskin challenge is still undecided. This holding up, or staying, of GBTI and QAII matters is even more reason for expedition. The last fixture before the learned Judge in the Gaskin FDA was on 21st June, 2018 (over one (1) year ago). Such delay must have a corrosive effect on public confidence in the democratic process, as parliament’s will seems to be a casualty of the law’s delay, even if, unwittingly. In the clarion words of Lord Wilberforce in 1980 in the English House of Lords as regards the courts; “it is no part of their duty, or power to restrict, or impede the working of legislation, even of unpopular legislation-to do so would be to weaken rather than advance the democratic process” (see the Rossminister case)
Our Parliament has taken action against long delays. Had space permitted, I would have told about the Time Limit for Judicial Decisions Act, Cap. 3.13 which requires decisions within four (4) months. -And how dealing with Gaskin’s case justly, the CPRs (mentioned above) requires the Judge to consider, inter alia, the “IMPORTANCE” of the case; the amount of money involved. The importance of the SARA (un) constitutionality question cannot be doubted. In an indirect way Gaskin’s challenge touches and concerns billions of dollars’ worth of, arguably, recoverable State assets within SARAs contemplation. There is a paradox about a case of Medical Council of Guyana v. Jose Deocampo Trueba court litigation. It was an FDA case. It was filed on 14 September, 2017.

Decision was delivered on 19th October 2017. (a mere 36 days) by the learned Judge with exemplary and commendable expedition. From High Court to CCJ the case was completed in six (6) months. On a happy note, this is what Barrow, J (in the CCJ) wrote viz “As mentioned the case proceeded with admirable dispatch and expedition……….decided by the CJ on 19 October 2017 and heard by the Court of Appeal on 21 December 2017….hearing before the CCJ on 17 March 2018. It is a deep pleasure to pay tribute to the Judiciary, the Court Administration, and Counsel for the remarkable achievements. This Case took six months from start to finish”. And yet the Trueba litigation had no overriding public importance, as does the Gaskin litigation, which deserves priority. It was filed/begun two months before the Trueba action.

I end with this: I am acutely aware, having myself held judicial office (albeit in the lower judiciary) that members of the judiciary are of varying temperaments and idiosyncrasies. I suspect this judge is of the ilk of Lord Denning not despising fair public comment on matters of justice which is never some cloistered virtue. So, now that the law’s delay is a matter of fair public comment, I would suggest that silence on this matter is not an option for the Guyana Bar Association. In enacting the Time Limit for Judicial Decisions, Act, our parliamentarians must have had these words in the English Magna Carta in mind: “To no one will we deny or DELAY right or justice.” The director might feel that justice is being both denied, and delayed.
Regards
Maxwell. E. Edwards