Latest update April 19th, 2024 12:59 AM
Mar 03, 2014 Letters
DEAR EDITOR,
I am dismayed and disillusioned over three recent incidents involving the judiciary which have brought the administration of justice in disrepute. The first incident involves the learned Attorney General of Guyana acting as counsel on behalf of the Finance Minister of Guyana who was involved in a motor vehicle accident over the weekend.
In doing so, the Attorney General has regrettably placed himself in a very precarious position for a number of reasons. Throughout the world and in the Caribbean, individuals who are appointed to senior public positions are expected to act in both their public and private capacity in a manner which will not undermine the office they hold and which will maintain public confidence in both the office and the office holder.
The learned Attorney General is the ultimate Minister of Justice. He proclaims to be the legal adviser to the President.
In his capacity as a member of Cabinet, while in Guyana it may or may not be required of him to resign from private practice upon being appointed as a Cabinet Minister, it is nevertheless the astute thing to do, in order that he not place himself in a conflict of interest position and bring his office in disrepute. This is applicable to all public officials more so to Ministers and those exercising judicial functions.
I am yet unable to fathom the picture of two ordinary citizens, sitting in front of the Attorney General and negotiating with the Attorney General for compensation of yet to be established damages which they may or may not have suffered when a vehicle driven by the Minister of Finance had an accident with their vehicle.
What is wrong with this picture you may ask? Well the answer is just about everything is wrong with this picture. Not only is there a huge power imbalance, but it smacks of nepotism.
Not fully aware of their rights and not having the opportunity to fully determine the medical nature of their immediate and long term injuries, these ordinary citizens were placed in the uncomfortable situation where it is easy to say to one self, I am dealing with big powerful influential men, let me settle or face who knows what.
Guyana has no shortage of competent and capable lawyers. Instead of exercising proper judgement and decline a request to represent the Minister of Finance, the learned Attorney General not only accepted the retainer (no money needs to change hands), and proceed to meet with the injured parties inside his taxpayers’ funded state office.
What is wrong with this scenario you may ask? While it is a misuse of his public office for private gain (and no money has to be exchanged to make it a private gain), it also points to a systematic Guyanese culture of misuse of state resources.
It also sends the wrong message to the bureaucracy and the public that it is okay to misuse state resources for private gain. Ordinary Guyanese may be thinking if it is okay for the AG to misuse his office, why not every other individual. The Attorney General ought to have exercised better judgement and lead by example.
With respect to the Honourable Minister of Finance, it is hoped that the Guyana Police Force will do its job and thoroughly investigate the accident. If it turns out that the Honourable Minister committed no wrongdoing, then so be it.
On the other hand, if the police investigation points to the Finance Minister being inebriated and driving under the influence, or was driving carelessly or recklessly, then the appropriate charges ought to be instituted. In Guyana, with the exception of the President who is cloaked with legal impunity, no one is above the law, including the Attorney General and the Minister of Finance.
The second incident has to do with the reported actions of Magistrate Geeta Chandan. Given the allegations of assault made against her by her former maid, it is simply unacceptable for her to continue sitting as a magistrate.
The proper thing to do is to place her on paid leave pending a thorough investigation of the allegations by both the police and the appropriate statutory body that has jurisdiction to investigate complaints against a member of her level of the judiciary.
Her role as a member of the judiciary dictates no less, failing which, the administration of justice will definitely be brought into disrepute. While we can sympathize with the Magistrate for what was done to her child, notwithstanding, the Magistrate has the obligation to act in a manner that would not have the effect of bringing the administration of justice in disrepute.
The actions of the sentencing Magistrate also can place the administration of justice in disrepute. The hastiness and nature of the entire process clearly points to the sentencing Magistrate under a misapprehension of bias because the mother of the victim child is also a sitting Magistrate.
Someone posed the question in the press asking what would have happened to the victim if this same situation had occurred in North America. I could advise that it is most likely that both the maid and the parents would have been charged and due process would occur.
The Magistrate would have been asked to resign or be placed on paid leave, the local law society tasked with the legal authority to disciplining its members would have commenced its own investigation against the lawyer father, and the maid would have been released on bail with conditions.
The maid would have also had numerous court appearances where she would have received full written disclosure of the particulars of charge, she would have had several opportunities to obtain legal representation and eventually she would have had her trial.
All of this is called due process and not breaching either the constitutional rights or the natural justice rights of the accused maid. I don’t believe any member of the judiciary in North America would have violated the maid’s due process and audi alteram partem rights as the sentencing Magistrate did.
Finally, I turn to the matter involving the learned Honourable Mr. Justice Sukhul of the Guyana Court of Appeal. It is indeed laudable that the Judicial Service Commission has looked far and wide to bring Guyanese talents to the judiciary.
However, removing a Superior Court Justice, a High Court Justice or a Judge of the Court of Appeal is an extremely serious matter, and due process has to be followed. In certain jurisdictions it will take a sitting of parliament to remove a judge from office.
The Committee or Commission of Inquiry tasked with investigating the complaints against the judge will hold hearings and present its findings to the government, who will then make a determination whether the judge should be removed from office.
If the judge refuses to vacate office, in Canada for example, it will take a combined sitting of both the House of Commons and the Senate to remove the judge. In Guyana, all it took was a demand from the learned Chancellor for the Honourable Mr. Justice Sukhul to resign, and resign he did.
I am not sure whether the learned Chancellor is cloaked with the authority to demand the resignation of a member of the Court of Appeal but what is clear is that the learned Judge of the Court of Appeal did not have due process. Irrespective of what transpired in England, the learned Judge should have been placed on leave, pending an investigation of the complaints against him.
The learned Judge could have made the decision to resign, quite independently of the demand from the learned Chancellor. It is a sad day for the administration of justice when someone with the stature of a Judge of the Court of Appeal of Guyana was denied his audi alteram partem rights by the learned Chancellor of the Guyanese judiciary. Such denial can and does bring the administration of justice into disrepute.
On another note, the explanations provided by Justice Sukhul for his disbarment are quite remarkable.
First, if a Judge requests a lawyer to do something, don’t ignore the request. In this case, Justice Sukhul should have brought a motion to get off the record rather than simply ignore the court’s request for him to perfect an appeal when according to Justice Sukhul, he was not retained on the matter.
This begs the second question, how did Justice Sukhul’s name get on the record if he merely drafted the allegedly false document but did not file it with the court?
Thirdly, never ignore a verbal or written request from the law society. Ignoring the requests of the law society will get you penalised or disbarred. The law society has the statutory power in most self regulated jurisdictions to discipline its members.
Fourthly, the explanation by Justice Sukhul that he was not disbarred by the courts does not have any weight as Justice Sukhul was disbarred by the entity which has the legal power to do so. Sixthly, don’t play the race card unless it is extremely plain and obvious.
There are numerous lawyers of colour practicing in Anglo Saxon jurisdictions, who would vehemently disagree with playing the race card, and moreso, Judges of the English Court of Appeal or any other jurisdiction for that matter, do converse with each other and it is one of them who will have to adjudicate Justice Sukhul’s judicial review application.
Seventh, don’t resign your membership if you are in the middle of a legal disciplinary proceeding because it will not help you. The hearings will continue with or without you, so that there will be a decision in the event you decide to reapply to become a member of the bar.
In conclusion, none of the above comments ought to be considered as an attack on anyone, including the learned Attorney General, the Honourable Minister of Finance, Magistrate Chandan or the learned Chancellor. I am not familiar with any of these public personalities.
However, I read the newspapers every single day and whether you agree or disagree with the position taken by these public officials, they are all hard working individuals and I commend all of them for their yeomen to public service.
Oudit Rai B.A., M.A., LL.B
Former Deputy Judge
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