Judiciary should not be made scapegoats for law enforcement failures- Bar Association
Kaieteur News news item. Friday 30 May 2008
The Guyana Bar Association (GBA) says that judges and the legal profession should not be made scapegoats for the failure of the law enforcement agencies to do their job of intelligently investigating and prosecuting crimes.
The Bar Association in a press release expressed great alarm “at recent comments and statements made by the Honourable Minister of Home Affairs, Mr. Clement Rohee, and His Excellency, Mr. Bharrat Jagdeo, the President of Guyana, concerning the administration of justice in our community, the most recent of which appeared in an article published in the Kaieteur News of May 22nd, 2008, in which the Minister considered the decision to grant bail to a murder accused to be a challenge to the government by the judiciary.”
The GBA said that it wishes to remind the Minister that the primary law of the country is the Constitution before which all other Laws must subordinate.
According to the GBA, the Constitution says at Article 144 (2) (a) that a person is presumed innocent until he is proved guilty by a Court of Law or has pleaded guilty.
This means that neither the Legislature nor the Executive can direct the Courts how to find a person on the trial of a matter, and therefore neither the Legislature nor the Executive should presume to tell the courts how they must determine matters.
“The freedom of an individual is still sacrosanct in our country, and the only guarantee of that freedom is the operation of independent Courts of Law staffed by independent judicial officers,” the GBA said in its press release.
It added that there have been much learned papers written about the object and application of bail, and all of them have in common that bail is not to be used as a punishment of an accused person before the court has found him guilty.
“In fact, the urging of members of the Executive to deny bail when our Constitution provides that a person shall not be deprived of his personal liberty except in certain conditions (Article 139) is a form of intimidation that sets a dangerous precedent and should not be lightly trifled with,” the GBA said.
The GBA explained that bail is a judicial discretion that must be weighed by the judicial officer in accordance with the facts and circumstances of each and every case and administered according to principle and precedent.
It is unreasonable to expect that the decision of the magistrate or judge will find universal approbation, but it must find universal respect as an inherently judicial process, the GBA explained.
The Bar Association pointed to Minister Rohee’s further assertion that “There appeared to be a disjointed criminal justice system, which was granting bail to murder accused. We now have bail applications being granted to murder accused. The judiciary has now become totally unpredictable and case law is now thrown out the window,” pointing out that it is unfortunate and unjustified, and implies that the Minister is more au fait with case law than the Courts or indeed the legal profession.
Such an assertion and attack on the judges and the legal profession, the Bar Association stated, is unacceptable.
According to the body of legal practitioners, in the context of these recent utterances by Minister Rohee, the disclaimer notwithstanding, earlier comments by his Excellency the President Mr. Bharrat Jagdeo reported in the Stabroek News of the 29th April, 2008 raise serious implications regarding policy.
The President is reported as saying – “We have witnessed some element of judicial lawmaking and I hope that you will look into that to see that the judges and the magistrates abide with the laws of the country and the will of the legislature because we need a fair judiciary that is bound by the laws of the country, so we need to work on that.”
The statement was made in an address to the Police Officers’ Conference at Eve Leary on Thursday 24th April, 2008.
According to the Bar Association, the exhortation to look into and see that “the judges and the magistrates abide with the laws of the country” can be interpreted as a threat aimed at the judicial officers of this country, a notion that is improper and violative of our Constitution.
“When the statement is further embellished with the words that ‘we need a fair judiciary that is bound by the laws of the country’, this suggests that the judiciary is not fair and is not bounded by the laws,” the Bar Association stated.
The GBA urges that as Guyanese there is the need to understand and at the very least realize that the judicial system is staffed by human beings who have flaws, but who must be presumed to be acting with professional integrity.
To threaten the judiciary is to shake the very foundations of the society and wake the beast of anarchy, the Bar Association pointed out.
“These statements can be interpreted as an attempt to intimidate persons who hold judicial office and make them fearful of deciding matters in a manner that the executive does not approve”.
The GBA wishes to therefore urge a more sober and tempered approach which avoids recent utterances.
“What is needed instead is a commitment to systemically revamp law enforcement whilst working with the judiciary to achieve a common understanding for the good of the country and all of its citizens as a whole,” the Bar Association said.