It has long been recognized that the judiciary and its decisions are not and should not be immune from criticisms. It’s quite a different matter to attribute motives to the judiciary that can be construed as improper such as failing to consider or to implement executive policy. Two contrasting approaches were displayed recently by Mr. Aubrey Heath-Retemeyer, Deputy Director of the State Agency for the Recovery of Assets (SARA) and Minister Khemraj Ramjattan, Minister of Public Security.
Mr. Aubrey Heath-Retemeyer’s, in an interview by KN on June 22, accused the judiciary of resisting the government’s drive to reduce corruption because they are not willing to facilitate SOCU or SARA. He said that there is a “stark disconnection between the judiciary and the thirst of the nation for an end to corruption…I feel that sometimes the legal system here…doesn’t want to be in step with the honest desire of the law enforcement people (like SOCU) to ensure that they get the job done. I feel that if there was a greater sense of urgency and understanding on the part of the legal people and the system, they would be more willing to facilitate what SOCU or SARA would be doing.”
The offence of misconduct in public office carries a maximum penalty of life imprisonment. It is what is known as a ‘common law’ offence and is triable on indictment. This means that it is is derived from judge-made law of England which Guyana has legally inherited. And it is triable by jury. The maximum penalty suggests that it is regarded as a very serious offence.
While the offence can be traced back to the 13th century, a definition, given by Chief Justice Lord Mansfield in the 1783 case of R v Rembridge emphasized its importance: “…. first that a man accepting an office of trust concerning the public, especially if attended with profit, is answerable criminally to the King for misbehavior in his office; …. Secondly, where there is a breach of trust, fraud or imposition in a matter concerning the public, though as between individuals it would be actionable, yet as between the King and the subject it is indictable. That such should be the rule is essential to the existence of the country.”
On Wednesday last the public was treated to a brilliant and expansive lecture by the former Chancellor (ag) of the Judiciary and now Distinguished Jurist-in-Residence at the University of Guyana, Carl Singh. The subject was “The Constitutional Guarantee of Fundamental Rights and the Citizen. The lecture, to a packed hall and attentive audience at Herdmanston House, was the third in the series “Conversation on Law and Society.” Chancellor Singh started by pointing out that while citizens may not always be cognizant of what their right are, they are certainly aware that the Constitution guarantees them, which they are often prepared to aggressively defend. He related the story of a visitor to a hospital in Georgetown who was being prevented from entering because the visiting hours had come to an end. During the argument between the visitor and the hospital staff, the visitor loudly proclaimed that it was her constitutional right to enter the hospital to visit her relative!
Chancellor Singh explored a wide range of issues, not all of which can be examined here. A few are selected.
This article below was first published in June, 2014, in a different political era. The recent shooting by the Police of three men on the seawall demonstrates the continuing relevance of the issues discussed at that time. I wrote as follows:
Violence and corruption in the police force can no longer be classified as allegations. They are real and are now an integral part of the culture of the Police Force and policing in Guyana. The sooner the authorities accept that these are chronic and systemic problems in the Police Force, the quicker there will be a serious attempt at a solution. No such attempt has yet taken place, even though modest efforts at ‘reforms’ have been made. But these have been attempted only reluctantly, after much public pressure and as an attempt to soothe public opinion. When public rage overflows, such as after the shootings in Middle Street, the public is offered the creation of a SWAT team. But the danger now exists that the Police Force will become so enmeshed and so entrenched in violence and corruption, that systems to protect these will take on a life of their own within progressively higher reaches of the Police Force.
The Caribbean Court of Justice (CCJ) will sit in Guyana for the first time this week. It is long overdue but welcome nevertheless. Guyana and Barbados were the first countries to accede to the appellate jurisdiction of the Court and our own Justice Desiree Bernard, now retiring, has been one of its first members.
Guyana’s final court of appeal, the Privy Council, was abolished in 1970. The PPP supported the establishment of our Court of Appeal but argued that the Privy Council should be retained for constitutional matters. It was felt that the Guyana judiciary was already being politically subverted and that a window of impartiality was necessary to protect at least the constitutional rights of the Guyanese people. The PPP did not succeed.