There has recently, because of our troubled times, been an increase of persons arrested by the police and/or members of the Guyana Defence Force. I do hope that all arrests have been under the aegis of the Guyana Police Force as otherwise other problems would arise.
I would in this letter deal briefly with-
(a) Conditions under which persons arrested are kept.
(b) The power of the police in the arrest of an individual and what are the consequences if the arrest is unjustified.
The first point that I wish to make is that the present conditions under which persons arrested are kept leave much to be desired. I do not expect that they will be kept at a one star hotel and have a restaurant service but the current conditions are cramped, filthy, poor ventilation, smelly and they have to sleep on the bare concrete floor. There is nothing to sit on and I currently have a client who is suffering from complex medical problems after having to sleep on the bare concrete for over three days. It is grossly unfair to arrest someone and keep them in the aforementioned conditions.
Article 141(1) of the Constitution states no one shall be subjected to torture or to inhuman or degrading punishment or other treatment. Unfortunately, the conditions generally under which arrested persons are kept are bordering on a breach of this constitutional safeguard. I do believe that it is time our courts appreciate the harsh conditions under which persons arrested are kept and show its disapproval by means of substantial damages. However, persons who feel that their constitutional rights have been violated must pursue recourse and give our courts the opportunity to condemn this practice.
The underlying factor is that an arrested person shall be presumed to be innocent until he is proved guilty by a competent court or has pleaded guilty – Article 144(2)(a) of our constitution.
I do not have a problem with the police investigating and pushing for information in order to solve crimes but it must not be done in a manner whereby the civil rights of a citizen will be trampled. Our police must do more investigating and rely on forensics in order to gain success and stop relying on locking up persons in the hope of getting information and confessions.
The law currently is that the police can arrest and or detain a person for 72 hours and thereafter that person shall be released or taken before a court. There has been a change in the law as to how a person should be dealt with after arrest.
When we attained independence in 1966, Article5(4) of the then Constitution stated that any person who is arrested or detained:
for the purpose of bringing him before a court in execution of the order of a court or,
upon reasonable suspicion of his having committed or being about to commit a criminal offence
and who is not released shall be brought before a court as soon as is reasonably practicable.
The Constitution was amended in 1980 and the former Article 5(4) was repeated as Article139(5). The major change in respect to the protection of the right to a person’s liberty is found in our current Constitution and which change was agreed to by the Opposition. This change, made in 2003 is reflected in Article 139(4) which provides that the police do not have to bring a person to a court as soon as is reasonably practicable but they are given 72 hours within which to bring an arrested or detained person to court or release that person.
Prior to 2003 the courts generally felt that 24 hours was what was reasonably practicable but now there is a fixed time of 72 hours set by Parliament. As a result, the police are of the view that they can arrest or detain a person for 72 hours without any justification and then release that person without any charges being laid.
That position is however subject to the fact that before a person is arrested there must be some reasonable ground and or suspicion for the arrest. Further, a person when arrested must be told at the time of arrest the reason for his arrest or if not appropriate then, at such reasonable time thereafter.
I do not subscribe to the theory that the police can arrest and or detain a person to obtain information. The police can invite a person to come to the police station to assist in their enquiries but if that person refuses to go, legally the police can do nothing. If they have any reasonable suspicion against that person then they can choose to effect an arrest.
If there are no reasonable grounds for arrest then a person can sue the arresting officer personally and or the Attorney-General, who is the legal person to sue for alleged wrongs committed by any state agency and or their servants and or agents. The claim by an aggrieved person would be for false imprisonment and breach of his constitutional rights. Our courts would be then under the spotlight to protect the rights of individuals and ensure that the police and or other state organs act in accordance with the law. The court can show its displeasure by the quantum of damages awarded.
Article 139 (4) speaks of a person who is arrested or detained and it seems that the police interpret arrest and detention as one and the same thing. Thus they are of the view that after 72 hours they can release a person without any consequences. It is my view that there is in this Article of our Constitution a great difference between a person who is “arrested” and one who is “detained”. The reason for the distinction is that “detained” refers to preventative detention.
You will in reading Article139 see that preventative detention is referred to in sub-section 1(k),2(a),2(c),2(d) and 6 and clearly the distinction was made between arrested and detained. Preventative detention is a different ballgame and legislation has to be passed to give it effect.
I would also like to state for the general information of the public that once a person is arrested that person must be cautioned that he does not have to say anything and can remain silent. That is the right of every person who has been arrested and also any other person who is not arrested is under no obligation to give a statement and or answer any questions put by the police.
The job of the police is difficult but if they want to have the respect of the public the public must be treated with respect and within the boundaries of the law. Our police are by-and-large not respected as they should be and one of the reasons is because of the manner in which the public and even criminals are treated. If respect is shown respect will be gained.
Let me conclude by calling upon President Jagdeo to confirm the appointment of Commissioner Greene as he must feel independent in his position, and it is perceived that if he should trample on the wrong person or entity he would not be confirmed.
“Justice is the right of the weakest” Joseph Joubert(1842).
Yours faithfully,
KAJuman-Yassin
Attorney-at-Law
