Appellate Court bound by Full Court ruling
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Appellate Court bound by Full Court ruling
-- until order is dischargedby George Barclay
Guyana Chronicle
March 7, 2000
CHANCELLOR of the Judiciary Cecil Kennard yesterday described the Full Court ruling that banned him and two other Appeal Court Judges from hearing the Yasseen and Thomas appeal as "irregular".
But because decisions in two well-known cases provide for the Full Court hearing to be obeyed until set aside or discharged, the Chancellor adjourned the hearing of the appeal to April 7, with the hope that by that time the Full Court order will be discharged.
A crowded Court made up of lawyers, the two condemned murderers Abdool Yasseen and Noel Thomas, spectators and the media representatives heard Chancellor Kennard give a chronology of the motion before Justice Winston Moore who had granted an application for conservatory order (temporary restraining order). The order was dismissed by Mr Moore during the pleadings on the grounds that it would be frivolous and vexatious and an abuse of the process of the Court.
According to the Chancellor, the applicants appealed to the Full Court. The Full Court held that the decision of Justice Moore was premature and set aside the ruling.
An appeal was made to the Court of Appeal.
Chancellor Kennard said that he subsequently invited Counsel for the applicants to his Chambers to discuss an early fixture.
He added, "No one raised objection to any of the Judges who were to sit in the matter.
"If questions arose subsequently as to whether the present panel should sit in the matter, I should have been approached before any motion was filed in the High Court, and this ugly affair may not have arisen."
The Chancellor continued: "We note that the Guyana Bar Association has issued a statement expressing hope that temperate discussions will take place between members of this Court and the High Court. That statement, however, has merely glossed over our grievance, which is most unfair to us. We need no one to tell us what words to use, or tell us what the Constitution says.
"However, such discussions can only be with respect to courtesies to be extended to each other. We also note that many persons have sought to comment on the issue but each has studiously with studied reluctance refused to discuss the facts in issue."
The head of the Judiciary added, "For ourselves we have no quarrel with the Judges of the High Court making any order - it is of course within their province to so do. And, speaking for myself, I am happy to note that they had in fact worked that afternoon until the evening hours.
"What we complain about and what no one wants to recognise or confront, is the manner in which all this came about. Our legal representative was present in Court before His Honour Mr. Justice Roy on the morning of 29/2/2000 when he disqualified himself from hearing the application for a conservatory order (temporary restraining order).
"Immediately thereafter, it seems, the Full Court was convened to hear the applicants' exparte application.
"Neither we ourselves, nor our representative were informed of this sitting. We were not represented at the hearing before the Full Court. We have been denied the fundamental right of a fair hearing which the applicants were seeking in the Full Court. Is this the way to treat the Head of the Judiciary and two of the most senior Judges?"
After referring to the history of the granting of exparte applications, the Chancellor said that the Judges of the Full Court did not seem to think it necessary to inform "us or our legal representative of the intended hearing. In its erudite judgement the Full Court did not follow the norm to grant a stay for a few days as was done by Justice Moore and give us the opportunity to respond".
"The Full Court made the order a final one restraining us from carrying out our duties without being heard, we being the members of the final Court, the Court of Appeal in Guyana," the Chancellor stated.
He pointed out that there was absolutely no urgency in the sitting of the Full Court. The condemned applicants were not about to be executed, and the Full Court missed the point.
"We in the Court of Appeal only have to decide whether the Full Court was right in setting aside the order of Justice Moore or whether Justice Moore was in error in making the order, which he did. If a telephone call was made to me by the judges of the Full Court asking us to hold our hand until both sides had been heard, we would have done so, and this entirely ugly affair would not have happened."
After asking himself why was an exparte application made to the Full Court after they were served with the proceedings before Justice Roy, the Chancellor referred to a letter in the Stabroek News newspaper which stated inter alia:
"On the 7 p.m. newscast of Wednesday, 1/3/2000 (on) Channel 28, it was broadcast that three members of the Court of Appeal stated in relation to a conservatory order made by the Full Court prohibiting the said three members from sitting in the Yasseen and Thomas Appeal, that the conservatory order was made by an inferior Court. And that if it were permissible for an inferior Court to make such an order, then the Magistrates' Court would also have jurisdiction to make a similar order against the Court of Appeal."
Reacting to the letter, the Chancellor added: "I would wish to advise Mr Hughes and the world at large that we made no such statement and that no representative of that news media was in Court when we sat on Wednesday 1/3/2000. Only Mr Barclay was present in Court.
"The other issue I wish to refer to is: Was it Justice Carl Singh or was it Justice Burch-Smith or was it both of them who gave the judgement in the Full Court.
"In the Chronicle of Wednesday 1/3/2000 one gets the impression that Justice Carl Singh ment and this is con the learned Judge gave an exclusive interview to that newspaper.
"In the Chronicle of Wednesday 1/3/2000, one gets the impression that it was Justice Carl Singh who gave the juegement and this is confirmed by what appeared in the Stabroek News of the following day, when the learned Judge gave an exclusive interview to that newspaper.
"However, after the Judge was criticised in an article which appeared in the Chronicle of Saturday 4/3/2000 for his involvement in the Full Court hearing, a correction appeared in the following day's Chronicle to the effect that it was Justice Burch-Smith who had delivered the ruling which took less than five minutes to deliver and that it was not a 10-page ruling.
"It seems to me that someone is manipulating the press in order to extricate himself from a delicate situation," the Chancellor emphasised.
He then said that it was the view of himself and his colleagues that the Full Court ruling was irregular.
But, he pointed out that because two well-known cases revealed that it was the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a Court of competent jurisdiction to obey it unless and until that order is discharged, the Appellate Court had decided to adjourn the hearing until April 7, by which time the Order might be discharged.
When the matter was called on the resumption yesterday, the lawyers who normally appear for the applicants refused to associate their names with the proceedings and said that they were only there as observers.
At this stage, Attorney General Charles Ramson, S.C. suggested to the Court that it should enquire from the applicants whether they were legally represented.
Yasseen, the number one condemned murderer, said that he was represented in the Full Court where the question of bias was being taken and that he was not represented here since he was only concerned with the bias case.
Noel Thomas, who became ill during the proceedings and had to leave the Dock, was not present to be questioned.
Earlier, when some lawyers were laughing as the Chancellor was reading the judgement, the Chancellor told lawyer Stephen Fraser that the matter was not a laughing one but a very serious matter.
Chancellor Kennard also called on the Marshall to ask any disorderly person to leave the Court.
Almost simultaneously, Mr Fraser collected his briefcase, bowed to the Bench, and walked out of the Court.
Lawyers clarify `harsh remarks' report
THE controversial judgment the Full Court issued last week was delivered by Justice Desmond Burch-Smith, according to lawyers Mr Nigel Hughes and Mr Stephen Fraser.
They said that the Chronicle page three report on Saturday headed `Layers group raps senior judges over harsh remarks' "contains some inaccuracies" and issued a statement clarifying the discrepancies.
The statement said:
"On Tuesday the 29th day of February 2000 at 1:30 p.m. the Full Court, comprising His Honour Mr Justice Burch-Smith and His Honour Mr Justice Carl Singh, presided over by the His Honour Mr Justice Burch-Smith, heard legal arguments on behalf of the applicants Mr Abdool Saleem Yasseen and Mr Noel Thomas.
The Full Court sat until 5:30 p.m.
Their Honours reserved their judgement to be delivered at 8:30 p.m. the same day.
At 8:30 p.m. His Honour Mr Justice Burch-Smith delivered the short judgement of the Court."
In the Chronicle story carried Saturday, a source had suggested that the court had sat longer and that Justice Singh had given the judgment.
