By Zoisa Fraser and Femi Harris-Smith
Saved from imprisonment by a presidential respite, Finance Minister Winston Jordan yesterday maintained that he ought not to be held personally responsible for government’s failure to pay the more than US$2 million judgment awarded to Dipcon for road works and he warned that the proceedings brought against him in his personal capacity could cause many to rethink public service if it is upheld.
“I have never contracted a service from Dipcon and I feel personally offended that an action can be brought in my personal capacity to pay a judgment to the state. Any monies garnered by the state is garnered through, principally, taxes. So, this is a judgement that has to be paid from taxpayers’ money,” Jordan told the media shortly after being presented with the Financial Intelligence Unit’s annual report yesterday.
Jordan had been given up to yesterday by Justice Priya Sewnarine-Beharry to pay the US$2,228,400 owed to the Trinidad-based construction company, failing which he would be liable to imprisonment for 21 days. In addition, the judge imposed court costs, which have to be borne by Jordan in the sum of $3 million.
Jordan noted that president had the power to issue a respite to stay that decision and following the Attorney General (AG) Basil Williams’ failure to secure a stay of the judge’s order, President David Granger invoked his power under Article 188(1)(b) of the Constitution to grant Jordan, both in his personal capacity and in his capacity as minister, “respite of the execution of the punishment until all appeals and remedies available to him and the State have been exhausted.”
The decision was published yesterday in the Official Gazette and was signed by State Minister Dawn Hastings-Williams.
Article 188(1) empowers the president to grant to any person concerned in or convicted of any offence under the law of Guyana, “a pardon, either free or subject to lawful conditions.”
Article 188 (1)(b) adds that the president may “grant to any person a respite, either indefinite or for a specified period, of the execution of any punishment imposed on that person for such an offence.”
Jordan said that the company’s decision to go after him in his personal capacity is interesting and it is a development that all in the public service should take note of.
“This is an interesting development because if this particular judgment is upheld, it means then that ministers who are public officials can be then sued or be made to pay in their personal capacity, judgements that have been awarded against the state…,” he said, while adding that without a stay it means you are in contempt and, therefore, will have to pay. “If that were to be upheld at the Appeal Court, then many of us will begin to rethink our public service, if you can be held in contempt for something you never did,” he said before reiterating that he does not owe Dipcon any money.
Stressing that he has a genuine love for the public service and has served with distinction, he admitted that the idea of going to jail did cause him some worry. “I would be worried if I am to be locked up under any circumstances, whether it is in my personal capacity, official… I am not a gangster or a mobster or anything, who is prepared to go to jail. I am an ordinary citizen, [a] peaceful citizen, who must enjoy my life the way I would like to enjoy it; who has given to [the] public service throughout his life, for almost all of his life; who has an unblemished record and whose integrity is intact,” he said.
Less than glorious
Jordan told reporters that he did not expect his name to be “blasted” in the newspapers in a manner that is “less than glorious to me and to the country itself.”
“I am a public servant at heart and I have given quite a bit to this country,” he maintained, before adding that he did not expect to be faced with contempt proceedings at this stage of his life, especially in a matter for which he has no responsibility.
The minister used the occasion to reiterate that the government inherited many large judgements against it, including Dipcon, which resulted from “lawless action” by the former government.
He made reference to a 2003 US$11 million judgment awarded to NH International Limited in joint venture with Emile Elias and Company Limited, which is still to be paid. Describing it as the “mother of all judgments,” he said the matter made its way to his desk last Friday. He explained that the interest for this sum has to be calculated from February 19th, 2007 to today’s date and further that the same applicant was awarded $416 million plus costs. That award alone, he said, will run into the billions of dollars. “This particular judgement was due to the arrogance of the then Attorney General and the lawlessness of the then PPP government because they, as a government, failed to provide a representative at the arbitration… the then government either refused or did not name their representative to the arbitration and as such the arbitrator was left on the basis of what was told to him by NH International Limited and Emile Elias and he formed his judgment,” he explained.
The minister stressed that the Dipcon judgment payment, in particular, is coming at a time when government is struggling to pay teachers and public servants. “Just consider some of the large judgements that we have had to pay that were inherited from the last government…,” he stressed before making reference to two other judgments.
“Let it be known that this has nothing to do with this government. These are judgments that have been inherited and unfortunately this government is saddled with them,” he said, while adding that he would make available to the press a list of all the judgments government inherited.
While Parliament had long-approved finances so that the judgment could be honoured, no money has been paid over to the construction company.
Court of Appeal
In an invited comment yesterday, attorney Timothy Jonas, who is representing Dipcon, expressed disappointment that no payment had been forthcoming yesterday despite repeated court rulings and he hoped that the sums owed would be paid.
The Full Court last Friday rejected an application for the stay of Justice Sewnarine-Beharry’s ruling and Williams has since sought to move to the Court of Appeal for redress, arguing that the judges erred and misdirected themselves in law in restricting him to arguing only one ground for a stay of execution—that being whether the appeal had good prospects of success.
He is contending in his notice of appeal, also, that the Full Court erred in ordering that Jordan, being sued in his personal capacity, still being Minister of Finance, could not be represented by the Attorney General, pursuant to provisions of the State Liability and Proceedings Act.
The AG’s position is that the Full Court erred by not considering that the action before the High Court was an application for judicial review against a public officer and therefore fell within the realm of public law.
Against this background, Williams has argued that in fact, the respondents therein could only have been the Attorney General and Minister of Finance in their official capacities, as against their private capacity.
He said Justices Diana Insanally and Simone Morris-Ramlall erred in refusing to grant the stay being sought; and by preventing them from addressing the court on all of the elements to be considered for the grant of a stay.
According to Williams, the court also erred when it failed to consider that Justice Sewnarine-Beharry herself erred in failing to appreciate that contempt proceedings were coercive and could not be made against an officer of the state—and in particular against Jordan privately—when no act was done by him in his private capacity for contempt to prevail against him.
On this point, the AG is arguing that Justice Sewnarine-Beharry ought to have declared Dipcon’s application before her as void ab initio, for being bad in law and in breach of the State Liability and Proceedings Act, and that the Full Court erred in not so declaring either.
He notes that section 14 of the Act expressly provides: “Wherever in any civil proceedings against the State judgment or order is given or made against the state, no execution shall issue thereon….”
According to Williams, no charge for contempt was ever laid against Jordan, nor any plea taken, which is “an absolute condition precedent to a hearing for criminal contempt and conviction.” The AG is hoping to have the ruling of the Full Court set aside.
Jonas, however, had told this newspaper that there could exist no appeal. He said that in his view, there is no appeal from an interlocutory decision of the Full Court. “The Court of Appeal does not have jurisdiction to hear any such appeal,” the lawyer said, while adding, “So that, the refusal of the stay by the Full Court on Friday, is the end of the matter insofar as the stay application is concerned.”
On June 25th, Justice Sewnarine-Beharry declared that Jordan was in contempt for not honouring the judgment of Justice Rishi Persaud, made four years ago, that Dipcon be paid the US$2,228,400 owed to it by government.
She ordered that Jordan be imprisoned for 21 days if he failed to make the payment by the end of yesterday, having found that he had both the actus reus and mens rea for contempt of the court orders, which she said could be proven beyond reasonable doubt.
Following a string of failed attempts to recover the money, despite previous court orders, Dipcon, through Jonas, filed contempt proceedings for non-payment against Jordan.
In its request to the court to grant an administrative order compelling the minister to pay, Dipcon in its application by letter dated December 28th, 2015, to the Registrar of the Supreme Court, transmitted the order made by Justice Persaud to the minister, who it argued, “thereupon became obligated… to direct, by warrant under his hand, that the amount awarded thereby to be paid.”
The company has argued that the minister, in breach of his statutory obligation, “deliberately and contumaciously refused and failed to comply with his obligation” under the State Liability and Proceedings Act and has subverted the said order of court to pay the said judgment or any part thereof.
Jonas had noted that though both the Court of Appeal and CCJ had upheld Justice Persaud’s ruling, Jordan has repeatedly acted in defiance of all those judgments.
Denying Jordan’s application for a stay of Justice Sewnarine-Beharry’s ruling, Justices Insanally and Morris-Ramlall in their ruling on Friday, said they were of the view that his application had no merit.
As a matter of fact, the Full Court judges said they found Justice Sewnarine-Beharry’s judgment committing Jordan to jail for contempt if he does not pay Dipcon, to have been proper as well as her subsequent refusal to grant the AG a stay of her order.
Both the Guyana Court of Appeal and the Caribbean Court of Justice (CCJ) had upheld Justice Persaud’s 2015 ruling.
Apart from these rulings, by way of action instituted on December 8th, 2017, Dipcon applied to the Court and on March 1st, 2018, obtained an order of mandamus issued by the Chief Justice (CJ) directing that the money be paid over to Dipcon.
