Battle of the courts
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Battle of the courts
'This is eye-pass' - Court of Appeal judges claimBy George Barclay
Guyana Chronicle
March 2, 2000
THE Court of Appeal - the highest court in the land - is upset at a decision by other judges and yesterday accused them of `eye-pass' (gross disrespect).
As a result, the Court of Appeal yesterday signalled it may ignore a ruling from the Full Court blocking it from hearing an appeal by the State against a judge's stay of execution of two condemned murderers Abdool Yasseen and Noel Thomas.
The Full Court went into an historic late night sitting Tuesday and ruled that the Court of Appeal must not sit on appeal as scheduled yesterday until allegations of bias are determined by the High Court.
But the Appellate Court constituted by Chancellor of the Judiciary, Mr Cecil Kennard, Justice of Appeal, Mr Lennox Perry and Justice of Appeal, Mr Prem Persaud yesterday said it was considering the implications of the Full Court ruling.
It objected to the move by the Full Court comprised of Justice Desmond Burch-Smith and Justice Carl Singh to proceed with the matter up to late Tuesday night without giving the senior judges an opportunity through their lawyer to respond to the allegations of bias.
The Appellate Court charged that this tended to show that the lower court had its own agenda.
Justice Perry said the action taken by the Full Court was not only disrespectful to the judges but `eye-pass' in relation to the Guyana Court of Appeal.
Chancellor Kennard declared: "We are at present studying the implications of the Full Court Order. If we come to the conclusion that the Order binds us we will abide by the ruling."
"If on the other hand we find otherwise, we will begin hearing the appeal on Monday", he said.
The Chancellor said that on the basis of an affidavit served on him, there was nothing amounting to bias.
He was told by Mr Nigel Hughes, for Yasseen and Thomas, who were in the dock, that during the hearing Justice Singh had challenged the affidavit and that there was need to file a supplementary affidavit.
It was observed that the need to file a supplementary affidavit emphasised how necessary it was to have the judges respond.
The appeal to be heard was instituted by Attorney General Charles Ramson, S.C. and Director of Prisons Dale Erskine against the decision of another Full Court comprising Chief Justice Desire Bernard, Justices Deonarine Bissessar and Justice B.S. Roy.
That Full Court had upturned a ruling of Justice Winston Moore who had dismissed the application by Yaseen and Thomas for a conservatory order to stop their execution.
Ramson's appeal was based on a point of law.
With the move by the State to appeal, the two men through their lawyers Mr Stephen Fraser and Hughes moved to the High Court for an order to restrain Chancellor Kennard, and Justices of Appeal Perry and Persaud from sitting on appeal in the Ramson matter because of alleged bias.
Justice Roy who heard the application on February 24 had refused the application but went on to grant the applicants leave to appeal against his order as well as a six-day conservatory order to enable them to appeal.
On Tuesday when arguments in relation to the motion involving the allegations of bias against the judges was called up before Justice Roy, the Attorney General appeared in person while Mr Ashton Chase entered appearance for the three judges and applied for leave to file affidavits in answer.
Justice Roy without granting any leave disqualified himself from the hearing and forwarded the summons to the Chief Justice for another judge to be reassigned.
Later the same day, the Full Court comprising Justice Burch-Smith and Justice Singh sat to consider the ex parte appeal against the refusal of Justice Roy to hear the matter.
The applicants' lawyers contend that because the matter was ex parte, there was no need for them to consult the other side, since No. 46 of the Rules of the Full Court give them that right.
Consequently, the appeal was heard without the judges' lawyer Chase being given an opportunity to respond.
The resulting effect is that the Full Court granted the applicants a conservatory order that sought to prevent the Guyana Court of Appeal from hearing the appeal set for yesterday until the applicants' motion of alleged bias against the Appellate Court judges is heard and determined in the High Court.
The other side of the story was told when the matter fixed for hearing was called up in the Court of Appeal yesterday.
Chancellor Kennard was the first to admit that he had received a copy of the Full Court Order that sought to prevent the Court from sitting.
Hughes on being questioned, pointed out that the Full Court was engaged in an ex parte hearing from the refusal of an ex parte application.
Attorney General Ramson who was invited by the Court to comment on the matter, said he agreed with Justice Perry that this is a serious matter and wondered why was the indirect haste to exclude the other party.
He said that although he was available in the precinct of the Court on the day in question for the purpose of resisting the application which was devoid of any merit, he was never told about a plan to have a Full Court hearing on that day.
Referring to the claim that the Appeal was heard under Rule No. 46, Mr Ramson said the Court ought to know that although a person makes an ex parte application, it is not bound to grant it.
He added: "The time has come for this Court to frown on this judicial conduct which is a disgrace."
The Attorney General said the Appellate Court is the highest court in the land and therefore no lower court cannot supervise it.
To attempt to do that, he said, would be to make absolute nonsense of the jurisprudence.
According to him, there is no jurisprudence in this country allowing for a deferment for the Appellate Court to give way to the lower court.
Referring to the particular Full Court judges, Ramson said, "They have no respect for this court."
"It seems to me that judicial deference has been converted into judicial delinquency. They have their own agenda," he declared.
Noting that this is the seventh application by the two condemned men, the Attorney General asked, "Where will it end? There must be an end to litigation."
He urged the Appellate Court to disregard the order and pointed out that if the order from the inferior court is accepted, the integrity of the administration of justice will be terribly compromised.
He contended that this kind of arrogance must be brought to an end.
Justice of Appeal Perry said he does not know of anywhere in the Caribbean or the world where a court of lower jurisdiction could restrain the highest court in the land.
"They are trying to make a mockery of the courts," he declared.
Mr Perry said the proper procedure would have been for them to file a motion to the Court of Appeal.
What has happened is not only lack of respect but eye-pass, he declared.
Justice of Appeal Persaud said that in the appeal to be heard by the Appellate Court the only issue to be decided was whether or not the Full Court can substitute its discretion to that of the trial judge.
The Chancellor who pointed out that they were in the process of studying the order declared "If we find that we could go ahead, the appeal will go ahead on Monday, which is the date already fixed."
Yasseen and Thomas were twice sentenced to death for the unlawful killing of Yasseen's younger brother Abdool Kalleen Yasseen in 1987 following a dispute over the siblings' inheritance.
They have twice succeeded in blocking their execution.
