JUSTICE IS NOT A CLOISTERED VIRTUE


Robust public scrutiny of the administration and dispensation of justice is vitally necessary to preserve the rule of law and the independence and integrity of the magistracy and judiciary. A public debate is raging in the press at the time of writing this article about the right of a Magistrate to reject a confession statement on the ground that it was obtained by coercion. It is not a debate that I am qualified to join publicly as I can claim no significant expertise in criminal law. I am concerned, however, about a sentiment that crept into the opening bout of the debate. Mr. Juman-Yasin not only criticized the legal principle advocated by the PPP but he suggested that the criticism was disingenuous and malicious. This is what he said: the ‘whole thrust of the statement was to criticize the decision……and implied ulterior motives.” I am sure that he could not be complaining about the right of the PPP or any group or person to criticize the magistracy or judiciary. Mr. Juman-Yasin has himself publicly criticized the judiciary and judicial officials in the recent past. Is it because the PPP is the critic that Mr. Juman-Yasin sees a problem – perhaps because it is the governing party and its criticism might be misconstrued? Or is there some other reason for Mr. Juman-Yasin to seemingly suggest “ulterior motives” on the part of the PPP?  The reason cannot be that the PPP was wrong. The argument clearly posits so far, in my humble view, what is actually the practice as against what the legal authorities say. At best the issue is still at large. Why cannot the PPP take a position based on the legal advice that it receives?

Mr. Anil Nandalall responded by rejecting the allegation that the PPP’s statement could be construed as imputing improper motives and, citing legal authority for the proposition that the magistrate had no power to reject the confession statement, disputed Mr. Juman-Yasin’s view of the law on the issue. Messrs. Bernard DeSantos SC and Nigel Hughes joined the debate in support of Mr. Juman-Yasin but, not citing any legal authorities, the matter is still unresolved. With such eminent lawyers being in disagreement, only a future court decision will probably finally resolve the matter.

Mr. Juman-Yasin would be familiar with this famous statement below made in 1936 by Lord Atkin, one of the greatest intellects in English jurisprudence during the last century whose creative ability extended the boundaries of the common law in some of the most eloquent, compelling and memorable language in legal literature: “Justice is not a cloistered virtue; she must be allowed to suffer scrutiny and respectful, even though outspoken, comments by ordinary men.” In 1968, then Mr. Quintin Hogg QC, then a politician and a Conservative MP, later Lord Hailsham, a Lord Chancellor, criticised the ‘unrealistic, contradictory’ and ‘erroneous’ decisions of the courts which, he said, should apologize for the trouble to which it had put the police by its decisions in interpreting certain legislation. Lord Denning, another English jurist of great distinction during the last century said: “It is the right of every man, in Parliament or out of it, in the press or over the broadcast, to make a fair comment, even outspoken comment, on matters of public interest.”  

There is no record of any court daring to cite Professor Glanville Williams, a celebrated legal scholar, who made the following strong statement in criticising the decision in Anderson v Ryan: “The tale I have to tell is unflattering of the higher judiciary. It is an account of how the judges invented a rule based upon conceptual misunderstanding; of their determination to use the English language so strangely that they spoke what by normal criteria would be termed untruths; of their invincible ignorance of the mess they had made of the law; and of their immobility on the subject, carried to the extent of subverting an Act of Parliament designed to put them straight.” The PPP’s description of the Magistrate’s decision as “extraordinary” pales into insignificance when compared to Professor Glanville’s statement.

Magistrates and judges are accustomed to the expression of disagreement with their views by lawyers appearing before in them only the most deferential and respectful posture and language. That is as it should be. But in the real world, of politics and otherwise, people do not speak like lawyers and neither should they. And, late though it may be, lawyers, magistrates and judges should accustom themselves to the language of the real world.

About 25 years ago we witnessed the deleterious consequences of unfettered judicial authoritarianism and intolerance. A young, courageous lawyer, who was defence counsel to some young men who were members of the PPP and who were charged with politically related offences, quite properly submitted to a judge that he ought to recuse himself on the ground of the appearance of bias because he was in the past a candidate for the PNC in general elections. In one of the great injustices of that era which reinforced the prevailing suppression of freedom of expression, the lawyer was cited for contempt. Only an impassioned plea by his Counsel saved him from a prison sentence. The message was clear – the judiciary as an instrument of oppression must remain unchallenged. It is incumbent on all of us to ensure that such a situation does not return to our judiciary or to Guyana.

 

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