Latest update March 29th, 2024 12:59 AM
Jun 23, 2017 Letters
Dear Editor,
After some 56 years of obeying, unquestioningly, the orders of the DPP to reopen and commit for trial a discharged accused, some might consider the disobedience of Magistrate Latchman heresy. Not me. I congratulate her. She is right in law. The Director of Public Prosecution is right in practice. But the practice is, plainly under the 1980 constitution, unconstitutional. The constitutional requirement of the fair administration of justice required that the accused (Regan Rodrigues) be discharged, for the offence of murder of Courtney Crum-Ewing and be a free man; until and unless, a Judge quashes his discharge.
After all, the Magistrate court being an inferior court, her decision to discharge is susceptible to prerogative orders – (not, I daresay, here any mandamus to comply with the DPP’s order to commit; blind unquestioning obedience, in this matter, is not her constitutional duty). The crux of this matter, is an accused’s fundamental right (having been charged with a criminal offence) to be “afforded a FAIR HEARIMG…. by an INDEPENDENT and IMPARTIAL COURT established by law” (Article 144(1)). So, let us ask the following questions and answer them. First, was Rodrigues charged with a Criminal offence? Answer – Yes (murder). Second, is the magistrate court that conducted the preliminary Inquiry (Magistrate Latchman presiding) into the Rodrigues murder charge an independent and impartial court established by law? Answer – Yes (Summary Jurisdiction (Magistrates) Act Cap 3:05; and article 154 of the Constitution so defines “court” as to include a Magistrate court).
Third, is the office of the DPP (created by (now) article 187) an independent and impartial COURT? Answer – No; it is not a Court within the definition in article 154; it falls within the ambit of the Executive branch of government; not the Judiciary branch, the DPP is a prosecuting authority; not a hearing one. Fourth, can the Judiciary (call the magistrate/court the lower Judiciary or inferior court) be seen to be independent, if it is directed to and ordered (in the exercise of its judicial function) by the DPP in relation to the Rodrigues’ PI? Answer – No.
I quote as relevant to that fourth question, article 122 A(1) in full: “All courts and all persons presiding over the courts shall exercise their functions independently of the CONTROL and DIRECTION of any other person or authority, and shall be free and independent from political, EXECUTIVE and any other form of direction and control.” I stress the point that it is settled that in our constitutional jurisprudence, the DPP is an officer of the Executive branch (Ali and Rasool V. the Queen (1992) 2 AC, 94 PC).
So, I turn now to what lawyers know as the doctrine or principle of separation of powers as distributed among the Executive, Legislative and Judiciary branches of Government. Since that famous decision in Hinds V. the Queen (1976) it is settled that the Executive cannot be permitted (by mere statutory authority) to exercise, what in substance and effect, amounts to judicial powers. The statutory power (ie section 72(2)(ii)(a)) of the Criminal Law (Procedure) Act under which the DPP purports to direct inquiring magistrate and purported to direct magistrates, Latchman, is such a mere statutory power.
Editor, section 72 of the criminal Law (Procedure) Act Cap. 10:01 is plainly inconsistent with article 144(1) and cannot stand unless (as a saved pre – 6th October 1980 law (what lawyers know technically as an “existing law”) it is interpreted with the necessary modifications, exception, adaptation, qualification to bring it into conformity with the “independent and impartial” requirement (article 122 A (ii)); and the fundamental “fair hearing” right in article 144 (1) (see section 7 (1) of the Constitution Act, Cap 1:01, the Privy Council employed this conformity method in Reynolds (1980) case; and instructively for the learned reader minded to do some research, the 1966 Constitution has no such conformity requirement counterpart). If the DPP’s order to commit is obeyed, this means, in effect and substance, that it is the DPP (a prosecuting authority) by her decision to commit (foisted upon the Magistrate) who has conducted the PI despite not being a Court; and obviously despite, not seeing or hearing a single witness.
If that does not offend the separation of powers principle, then that principle is a dead letter. When taking witness deposition, demeanour when testifying could be a most crucial factor, of which only the inquiring Magistrate has the benefit. (in my experience on the Bench I know empirically that demeanour can be a very critical tell-tale factor when assessing the credibility and veracity of crucial police witness such as ASP Ceasar in this Rodrigues PI matter).
Lord Griffiths in the Privy Council in a Jamaican case put the matter of the forensic role and probative value of the senses of seeing/hearing, most eloquently when he wrote: “It is a fundamental requirement of the fair administration of justice that those charged with returning a verdict in a criminal case, be they judge, magistrates, or jurors should have seen and heard all the witnesses.
If they have not had the opportunity to evaluate the reliability and veracity of a witness by seeing and hearing him give evidence, they lack a part of the vital material upon which their verdict should be based” (R V.Beswick (1987) 30 WIR 318). None dare doubt or dispute the seminal relevance and applicability of that passage to PI’s (albeit the magistrate is not conducting a trial per se; and is not returning a “verdict” technically speaking).
The fair administration of justice, is, and must be just as fundamental a requirement at the PI stage, as it would be at the trial stage if the accused Rodrigues was committed to stand trial for Crumg – Ewing’s murder in the High Court. The “fair hearing” right begins at the PI: not at any subsequent trial.
Editor, I am acutely aware of the desirability and reasoned justification for some oversight authority of the DPP over magistrates in these matters. The public interest in justice working for both the accused, and prosecution alike, demands some over sight. But oversight is not virtuous if it is practiced by some unconstitutional process of giving directions to magistrates. For, there is no fairness or virtue, in unconstitutionality.
Magistrate Latchman’s disobedience may, perhaps, be the catalyst for the C.C.J settling this contentious issue: given the presumption of constitutionality of section 72(2)(ii)(a) which operates in the DPP’s favour even, as article 187 of the Constitution which vests the DPP with prosecuting authority does not to any extent whatsoever, countenance any judicial duties such as an inquiring Magistrate performs at PI’s, of deciding on the basis of evidence whether a sufficient case has been made out to commit the accused for trial.
Maxwell Edwards
(Attorney – at – Law)
THIS IDIOT TELLING GUYANA WE HAVE NO SAY IN THE 50% PROFIT SHARING AGREEMENT WE HAVE WITH EXXON.
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