Posted: Thursday, July 2, 2020. 5:46 pm CST.
By Aaron Humes: Last week’s suggestion by Prime Minister Dean Barrow that the oral ruling, not reduced to writing, by Chief Justice Kenneth Benjamin stipulating that he, the Minister of Finance, unlawfully spent over one point five billion dollars from the public purse was of no effect, raised shockwaves across the legal spectrum.
The Senior Counsel argued that a judgment does not occur until it is perfected in writing, signed by the judge and then sealed by the Supreme Court.
In reply Senior Counsel Eamon Courtenay, speaking to reporters this week, proclaimed himself “astounded” and cited a 2018 Caribbean Court of Justice decision, R v Gilbert Henry, concerning the Court of Appeal changing its mind before issuing a written decision against a man convicted of dangerous harm who had served his full sentence. The C.C.J. ordered no additional jail time for Henry on the charge.
Paragraph 23 of the judgment as cited by Courtenay states, “An oral decision or order made by a judge is normally binding from the moment it is delivered. It has legal force and parties are entitled to rely upon it.” Later, the court states, “The court is functus officio once the order has been recorded or otherwise perfected.” The rest of the paragraph deals with procedure in respect of criminal cases.
When we cited the judgment to him this afternoon, the Prime Minister clarified his thinking.
“I agree that the moment a decision is pronounced and an order made, it takes immediate effect. So that for example, if the order says you are to do something from today, you ought to do it from that day. So that when the order is perfected, and that is only when it has finality, so that when it is perfected you can’t say, ‘Well, I didn’t comply because I was waiting for the order to be perfected.’ But in a situation where the order is never perfected, you can’t get into any trouble. You would have been running a risk if you decided not to comply with what was said because you felt the order would have never been perfected. But if for whatever reason you didn’t comply and the order was never perfected, you’ve gone clear.”
Barrow added that without the perfected order, there can be no appeal or further scrutiny, as a judge can change his mind as long as he is not functus.
The oral order included an injunction not to spend supplementary allocations without going to the House, which the Prime Minister reminded us was stayed for six months at the then-Chief Justice’s order. The supplementary allocation was approved by the House on Friday and the Senate on Wednesday. And in any event, the ex-Chief Justice is off the court, so he cannot go back and try to complete the judgment in writing and have it signed as he is no longer a member of the Court.
As for Courtenay, he said he was consulting with attorney on the case, Senior Counsel Andrew Marshalleck and “we will be making our moves very shortly.”
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