Jurisdiction issue hotlly contested in contempt case
THE issue of jurisdiction was hotly contested yesterday when the Full Court began hearing the contempt motion launched against three Guyana Court of Appeal judges by condemned prisoners Abdool Saleem Yasseen and Noel Thomas. In a continuation of the so-called battle of the Courts, Senior Counsel Ashton Chase, representing the accused appellate judges, contended that High Court Justices Desmond Burch-Smith and Carl Singh had no authority to try the trio. But other attorney-at-law Mr Stephen Fraser, for the prisoners, used the precedent cited by Chase to dispute the contention before the proceedings were adjourned to next week. Fraser, acting on behalf of the convicts, had laid the charge against Chancellor Cecil Kennard and other Justices of Appeal Lennox Perry and Prem Persaud after they sat following the controversial Full Court order restraining them from sitting on an appeal by the Attorney General and the Director of Prisons from a decision in favour of the convicted duo. The temporarily reprieved Yasseen and Thomas alleged, in affidavits, that since the Full Court injunctive on the ground of apparent bias, the highest tribunal in the land convened and fixed dates to continue the proceedings and, during the extant trial of the contempt matter, that Bench went ahead and set May 7 for the resumption. Arguing the jurisdictional issue, Chase submitted, before Justices Burch-Smith and Singh, that the Court of Appeal judges enjoy judicial immunity. Fraser responded by saying the submission is "a sham or veil" drawn to hide the real question. He insisted the Full Court has the power and said it was given by the Guyana Court of Appeal since the 1980s, when the latter, in a contempt case involving Sookraj & Sookraj and the Attorney General, adopted the English ruling in Atkinson & Atkinson and held that, where a party in dispute is accused of contemptuous conduct, the contemnor cannot be heard until purged. Fraser sought leave to have Yasseen and Thomas give evidence in relation to those aspects of their attestations that are disputed. "I think that we have covered all the non-disputed issues and it is necessary for the appellants themselves to give evidence about the statements that have been made by the judges of the Guyana Court of Appeal at one of its sittings." One particular statement he cited was that the judges who restrained the appellate Court ought not to be judges. "I will certainly want to lead evidence. I would like to make sure that everything that was said is recorded by the Court and the best persons to lead that evidence are the appellants themnselves," Fraser said. In answer to Justices Burch-Smith and Singh, Chase said his objection to that procedure is two-fold, including that such a motion is being determined on affidavits. Chase added that the Full Court cannot find the defendants guilty as it was not open to any other Court to do so. Consequently, there is no question of oral testimony being taken. Senior Counsel took the position that the Full Court is a special division of the High Court and its domain is set out in the High Court Act. Part II of that Act sets out its composition and Sections 79 to 83, in summary, make the Full Court an appellate forum. Chase emphasised that the Act does not empower the Full Court to try matters of contempt. Fraser replied that the Full Court had, quite rightly, acted under Section 46 Rule 16 in the ex parte grant of a conservatory order which mentioned that there was apparent bias on the part of the appellate Court judges. Counsel said to acknowledge the concept of judicial immunity would be to allow some people to believe they are above the law. He said judicial immunity suffered with the advent of civil jurisdiction in Sookraj & Sookraj versus the Attorney General and the declaration:"I am not going to hear you until you purge your contempt." Fraser said that was the breakthrough which gave this Court the right to say the same words. The latest litigation now engaging the judiciary prolongs the quest by Yasseen and Thomas to escape the death penalty for the 1987 murder of Yasseen's younger brother, Abdool Kaleem Yasseen, because of jealousy over the bequest of their father's legacy.
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