Stabroek News Editorial. Sunday May 25, 2008
On Thursday the Minister of Home Affairs Clement Rohee was unusually the recipient of a rebuke – by implication – from the Office of the President. In his customary unaffected fashion he said in a press conference on Wednesday that there appeared to be a disjointed criminal justice system, which was granting bail to murder accused. “The judiciary has now become totally unpredictable and case law is now thrown out of the window,” he was quoted as saying.
And that was not all. Mr Rohee went on to tell the media that while the executive was insisting on draconian penalties, among other things, to enhance public security, the judiciary was moving in the other direction and was becoming more favourably disposed to upholding the fundamental rights of accused persons. “But what about the fundamental rights of those who suffered and are traumatized for life?” he asked rhetorically. The courts no less than the executive and the police should be taking public interest into account, he said.
In a statement the following day the Office of the President had this to say: “Notwithstanding the minister’s concerns that are a reflection of social sentiment, the Office of the President wishes to advise that the executive is unprepared to accept any contention that such a ruling actually constitutes a challenge.” The statement went on to say that the cabinet in its meeting of May 13 had urged Attorney General Doodnauth Singh to continue evaluating the implications of bail being granted in cases of frequent serious offences, bearing in mind that the stability of the society could be affected if the accused then committed further crimes while on bail, or escaped the jurisdiction.
It may be that Mr Rohee thought he was reflecting the tenor of the discussion in the cabinet room; if that is so, then what might have made the OP uneasy could have been the fact that he had homed in on a specific judgement, in this case from Chief Justice (ag) Ian Chang. It must be said that the President himself has not been above criticizing the judiciary in general over the matter of granting bail, a recent example being when he addressed the police officers’ conference last month. On that occasion in the presence of Chancellor (ag) Carl Singh, he said there had been almost 60 cases this year where people had received bail for non-bailable offences. The Government Information Agency then went on to quote him as saying: “We have witnessed some element of judicial lawmaking and I hope you will look into that Mr Chancellor so that judges and magistrates abide with the laws of the country.”
In the specific case which seems to have triggered the Minister’s ire, Justice Chang had granted bail to a man who had been in court for eight years awaiting trial for murder. The delays in the case had been occasioned by prosecutorial error, and Justice Chang said the man should not have been made to suffer for it. In his ruling he cited Article 139 of the Constitution of Guyana which provides for bail, and then Article 153 which provides for the discretion to safeguard the fundamental rights of an accused.
Mr Rohee seems to think that the matter of an accused’s rights can be disregarded in the interests of security. He made an appeal to popular emotions by asking whether he was now to understand that if those who committed the atrocities at Lusignan and Bartica were to be arrested and charged, they would be granted bail under Articles 153 and 139 of the constitution. It is a non sequitur, of course, since it doesn’t follow that granting bail in one case inevitably involves granting bail in another which might have different characteristics. Every case would have to be looked at on its merits. As it is, decisions about balancing considerations of public security with the rights of an accused in any given instance, lie not with the Ministry of Home Affairs, but with the judiciary.
For his part Justice Chang pointed out in a statement after the Minister had spoken that “It is the judiciary and not the executive which is the guardian of the Constitution.” Needless to say he is correct. He also observed that some tension between the judiciary and executive was inevitable, and must be accepted as normal in a state structure in which the doctrine of the separation of powers inhered.
While a separation of powers reflects the intent of the constitution, Minister Rohee from his current remarks and the administration in general have shown themselves less than enamoured of the concept, seeking to treat all branches of government as an extension of the executive. Justice Chang, however, expressed the view that the Minister’s comments should reassure the public that the judiciary was not the subservient mistress of the executive. Well in this particular instance, certainly not, but the public would require far more evidence before it would feel confident in accepting the rather general proposition set forth by the acting Chief Justice.
In any case, both the Minister and the President have oversimplified the bail issue. Apart from the fact that the circumstances of each individual case would have to be looked at before a conclusion could be come to about any trends or whether there is matter for concern in a specific area, they have overlooked the larger problems in the judicial system. As said above, the granting of bail in the case which set off the current furore was related to delays caused by prosecutorial error. The public has the impression that this is not an uncommon occurrence, and we have carried several letters in this newspaper about inexperienced prosecutors and police prosecutors being used in difficult cases. The Director of Public Prosecution is only acting, of course, which has obvious difficulties hardly in need of elaboration, while prosecutors’ pay in general does little to induce the best and the brightest to enter the system.
There are other reasons too for the delays in the court system, which can conspire to keep a remand prisoner in jail, sometimes for years. The government has to recognize, therefore, that an accused – who, whatever Mr Rohee might think is entitled to a presumption of innocence until found guilty by a court – should not have to wait unconscionable lengths before being brought to trial. The next time the Minister is overcome by ‘draconian’ instincts, therefore, he should balance them by reciting to himself the old adage, ‘Justice delayed is justice denied.’