OUT OF ORDER – Court slams PM, MP over comments on EMBD case

PURILE and vulgar were the descriptions given by three judges of the Court of Appeal of statements Opposition MP Dr Roodal Moonilal made on a political platform on Labour Day.

Moonilal was responding to statements made by the Prime Minister at a press conference days before when he questioned if Dr Rowley was “in cahoots” with the judges and was “putting pressure” on them in the appeal involving the Estate Management Business Development Company Ltd’s (EMBD) multi-million-dollar cartel claim against him and a group of contractors.

The judges hearing an appeal involving the case are Justices of Appeal Nolan Bereaux, Mark Mohammed and Maria Wilson. They were expected to give their decision on both the appeal and the statements on Friday. However, Wilson has since recused herself because of her brother’s previous directorship on the EMBD.

On Thursday, the judges issued a public statement on the comments by both men.

Dr Rowley’s statements on June 12, they said, were inaccurate. Moonilal’s statements on June 19 they said were “vulgar.”

Mohammed and Wilson issued a joint statement while Bereaux gave his separate views.

Mohammed and Wilson said the Prime Minister was “quite simply inaccurate” in his account of what had taken place in the appeal.

Mohammed said it lent itself to the interpretation that he was referring to the appeal which had not yet been adjudicated on, and was capable of giving the impression that the court had ruled, when the only order was that involving the terms of a consent order agreed to by all parties on filing their defences.

“This court did not make any decision in favour of anyone.”
They also said they did not find “objectionable” a letter written by the contractors to express their “shock and concern” at Dr Rowley’s statements.

In reviewing Moonilal's comments, they said they “deplored the vulgarity.” They also said they did not fear public criticism but it should not “traverse the path of imputing improper motive.

“We are of the view a public statement is all that is needed to address Dr Moonilal’s statement.”

They were also confident that the right-minded public would have concluded that they acted appropriately and wholly within the doctrine of the separation of powers.

Bereaux agreed with his colleagues, except he felt that the letter by the contractors complaining of Dr Rowley’s statements was “ambiguous” and should not have been sent. Instead, he said a “simple phone call” to attorneys for the EMBD would have sufficed to clarify exactly what the Prime Minister meant.

He said the criminal charge of scandalising the court – a form of contempt, in which hostile criticism of a judge is made, still remained on TT’s statute books.

However, he said it should be used sparingly. Bereaux said criminal prosecution because of statements, however vulgar or puerile, was unlikely to foster confidence in the administration of justice. Bereaux said judges were expected to uphold and encourage, not suppress, criticisms  of them.

In his statement on June 12, Dr Rowley said, “They went, they appealed the matter and they went to get the judge’s position overturned.

“The appeal court has ruled in favour of the state enterprise, the EMBD and as we stand here now Mr (sic) Moonilal and others have to put in a defence in the court to disclaim for the loss of hundreds of millions of dollars in a state company.

“And I ask you, the media, to advise the public as the matter progresses through court. Two steps have gone already in the court, but there is silence in the country.

“The first step is the Justice (James) Aboud ruling that nobody seems to know and want to know. The second step is the Appeal Court saying, 'Put in your defence. You have a defence to put it in? Put it in.'”

Moonilal responded to the Prime Minister’s statements at the UNC’s Monday Night Forum on Labour Day at the Aranguez North Secondary School.

Initially, the judges said they were willing to do nothing after receiving the letter until they received a video recording of Moonilal’s statements, which they played in court at a hearing last week.

At the UNC meeting, Moonilal referred to the Prime Minister’s press conference and accused the Government of “flogging the EMBD horse for eight years.”

He described the civil case filed by the EMBD as a “PNM case,” and said every time there was an election, EMBD was spoken about. He further questioned the Prime Minister’s knowledge of the outcome of the appeal and asked if Rowley was in “cahoots” with the judges.

“Are they speaking to him? Is he speaking to them?” Moonilal also asked if the Prime Minister already knew what the Court of Appeal would decide.

“This speaks to the undermining of the rule of law, of the Judiciary,” he said, adding that it was a “serious matter in a country where a prime minister is telling the country he knows what the Court of Appeal will determine.”

Moonilal called on the Chief Justice to “clear the air,” and say if Rowley was “in touch with any or all judges of the Court of Appeal” and if he was “putting pressure” on the judges.

“How do you know the outcome of the Court of Appeal ruling? Did the Prime Minister have private conversations with the Chief Justice or the judges who heard that matter?”

He also questioned if there was an attempt to “influence” or “intimidate” the court into ruling in favour of the State.

Former attorney general Ramesh Lawrence Maharaj, SC, who represents some of the contractors in the appeal, said the letter was sent after Rowley’s statements were reported in the media.

It said, “Our clients are extremely concerned that it is reported publicly by the political arm of the State that a judgment has been given by the judicial arm of the State against them before they are made aware of the reasoning and the decision of the Court of Appeal.

“They are obviously shocked and very upset about that because of the confidence they have in the judicial arm of the State. “

The letter said the lawyers were instructed to write to the court because of the statements and Maharaj maintained it was done in “good faith and in the interest of the administration of justice.”

He also stressed that no one should make statements suggesting that a court has made a determination in a matter when it has not.

“The purpose of my letter is to let the court decide on what to do.”

The appeal the judges were expected to rule on is against the August 2020 ruling of Aboud, who dismissed preliminary applications by TN Ramnauth, Taradauth Ramnauth, Kallco, Mootilal Ramhit and Co and Fides Ltd for the EMBD to detail the allegations against them so that they could fairly mount their defence or strike out the claims. Those five appealed.
The EMBD also filed a separate appeal of certain aspects of Aboud’s ruling and it was in this appeal the consent order was entered into and allowed, contingent on the decision in the other appeal.

The three judges heard submissions on May 26 and reserved their ruling. The consent order to file defences was contingent on that decision.

Last month’s hearing came after Justices Mira Dean-Armorer and Ronnie Boodoosingh heard the same submissions in January 2021, and said they had difficulty in arriving at a unanimous decision even after considering the evidence, submissions and engaging in discussion.

They said since the matter was one of general importance and would affect people other than the parties involved, they were relying on provisions of the civil proceedings rules which allowed them to direct that the appeal should be heard by a full panel of three judges. It was then assigned to Bereaux, Mohammed and Wilson.