Dear Editor,
Madame Justice Roxane George, Chief Justice (ag) of Guyana on Thursday 21 February, rejected an application by the Director of Public Prosecutions (DPP), Ms. Shalimar-Ali Hack, S.C. for an order for the arrest and committal for trial of Winston Jordan, the former Minister of Finance, in the APNU+AFC Coalition government. Mr. Jordan had been slapped with a charge of misconduct in public office for signing a vesting order transferring state property to BK International Inc., for a price “allegedly below market value.” The charge was dropped after a Magistrate found insufficient evidence to prove that Jordan was a public officer. Disagreeing with the Magistrate’s decision, the Director of Public Prosecution who constitutionally is not subject to the direction of any person, brought the action, unbeknownst to Mr. Jordan or his attorneys. Dr. Kim Kyte-Thomas appear-ed for the DPP.
It is scary to ponder that if the DPP’s application had succeeded, Jordan would be spending Mashra-mani weekend behind bars. We recall that Jordan was locked up for an entire weekend prior to the charge being instituted. Fortunately, the judiciary still works, justice has prevailed, and Jordan remains free. Phew! Despite the erudition, juris-prudential soundness, cogency and well-reasoned and articulate logic of the 75-paragraph decision, an appeal by the DPP cannot be ruled out.
Paragraph 11 of the decision notes that the application was (fatally) mistitled, thus constituting grounds for the dismissal of the application but that “there are other equally fundamental issues to be addressed”. The CJ then discussed whether the defendant should be heard and went into some profound discussion, including differing on one point from the CCJ in other cases. On that basis, the ruling notes at paragraph 37 that since the right to be heard goes to the safeguarding of the constitutional guarantee of the liberty, strict procedural provisions must apply. The CJ concluded on the question of this right that had she not ruled on the fundamental issue of jurisdiction, she would have ordered service on Jordan.
The ruling then looked at the merits of the case against Jordan, noting the elements of misconduct in public office. While disagreeing with the decision of the Magistrate regarding the status of Mr. Jordan as a public officer for purposes of the offence, the Court concluded that the evidence – some of which was found to be “inadmissible hearsay, and unsupported opinion evidence”- did not establish that the offence had been committed to justify the issue of warrants for arrest and committal. In its consideration of the facts, the Court ruled that there was nothing in the evidence to indicate that there was a clandestine sale of the property in issue, or that Jordan benefitted in any way.
It does not escape attention that the DPP had used her extensive powers to withdraw charges against former PPP/C ministers and now attempted to use those same powers to jail Mr. Jordan. On this point, it is worth reflecting that the decision in this case highlighted sentiments expressed by Justice Desiree Bernard in a CCJ case as follows:
“ … this Court must be acutely concerned about the tort [of misfeasance in public office] being utilised indiscriminately for the settling of scores in a political environment and exposing public officers to actions that cannot be judicially sustained. It will be the duty of the courts to keep a watchful eye on this tort in order to avoid wanton use by a State seeking to combat the executive and administrative abuse of power by public officials.”
Hopefully, the Attorney General and the Bar Association will follow the suggestion by the Chief Justice to discuss an immediate amendment to the Criminal Law (Procedure) Act, Chapter 10:01, to prevent such an abomination ever happening again.
Yours faithfully,
Christopher Ram
