Dear Editor,
I write in response to another letter by Mr KA Juman-Yassin published in Sunday Stabroek (August 16) under the caption, ‘Practice and custom become law,’ where Mr Juman-Yassin continues to pontificate that magistrates have a power to exclude confession statements at a preliminary inquiry. Again, Mr Juman-Yassin has cited not a single relevant authority in support of his contentions, although he claims that this practice has been accepted by our judiciary for years. In these circumstances, one would have expected that it would have been quite an easy task for Mr Juman-Yassin to cite at least one local authority in support of his arguments.
Readers would recall that in support of my contentions, I cited pertinent extracts from Blackstone’s Criminal Practice 1996, the dictum of Lord Justice May in Oxford City Justices ex parte Berry (1980) QB 50, Commonwealth Caribbean Criminal Practice and Procedure 2006 by Dana S. Seethal, Confession Evidence: Practice and Procedure in the Commonwealth Caribbean 2008 by Darshan Ramdhani and a circular from the Chambers of the Director of Public Prosecutions.
I observed that Mr Bernard De Santos SC and Mr Nigel Hughes have expressed support for the views expressed by Mr Juman-Yassin. Unfortunately, apart from their expression of support, these two learned gentlemen have added no substance to the debate, neither did they cite any legal argument or authority in support of the position they advocated.
Lest the wrong public impression be conveyed, I feel obliged to inform that a former Chancellor of the Judiciary, a retired Court of Appeal Judge who was the longest serving magistrate in Guyana and perhaps the entire English-speaking Caribbean and several legal practitioners have all indicated to me that my essay represents an accurate exposition of the relevant law, practice and procedure in England, the Caribbean and Guyana.
But then again, the law must never depend upon ‘he seh, she seh and dem seh.’ The law rests upon surer foundations. It is contained in the law books and in judicial pronouncements. I have quoted some in support of my argumentations. Those who have publicly disagreed with me have abysmally failed to reciprocate.
I will nevertheless attempt to address the salient issues raised in the letter of Mr Juman-Yassin.
In my humble view, Mr Juman-Yassin’s entire legal argument is predicated upon a flawed hypothesis, thereby resulting in a flawed conclusion. He argues that “a preliminary inquiry is in essence a trial…” When this fallacious assertion appeared in his first letter, I thought it was a slip of the pen. When it appeared in his second letter, I realized it was deeper.
It is beyond any disputation that a preliminary inquiry and a trial are two fundamentally different and radically disparate legal processes. Their jurisprudential nature, purpose and function are critically dissimilar. In a nutshell, the main purpose of the preliminary inquiry as explained in the Guyanese case of R v Gomes (1962) 5 WIR 7, is to make the accused aware of the case he has to meet at the trial and to give him an opportunity to probe and counter it. On the other hand, the trial is to determine the guilt of the accused.
Each of these legal processes has its own peculiar rules and procedures governing them. In respect of a preliminary inquiry, the authorities clearly establish that one of those cardinal rules is that the presiding magistrate has no power to exclude a confession statement of the accused. This is simply not a function to be performed at a preliminary inquiry. This was the position in England for over one thousand (1000) years until it was changed by statute just over a decade ago. It is this very system which was supplanted by Great Britain throughout the Commonwealth, including Guyana and the Caribbean. This position can only be changed by statute in the respective territories. Both Dana Seetahal and Darshan Ramdhani in their seminal texts examine the statutory provisions and the practice and procedure in every jurisdiction in the Commonwealth Caribbean, including Guyana. They both found that such powers do not reside in magistrates in any part of the Caribbean. I must emphasize that in both of these academic works, whenever the author confronts an exception in any jurisdiction in relation to statute, practice or procedure in respect of any specific issue under review, it is highlighted.
If Mr Juman-Yassin is correct, then both of these authors are wrong on a very elementary procedural issue. It is to be noted that Seetahal’s book is widely used throughout the Caribbean and is the recommended text at the three regional law schools in the West Indies. The book is now in its second edition. Worse yet, Blackstone, which is about one hundred years old and is widely used throughout the common-law world is also wrong on this basic issue!
Importantly, both the committal proceedings and magistrates are creatures of statute. They do not have any inherent power. If the creating statute does not so empower and the common law prohibits the exclusion of a confession statement at a preliminary inquiry, whence does a magistrate in Guyana derive such a power? And significantly, why is the position different in Guyana from every other Commonwealth Caribbean territory although we share an almost identical common legal history and a common legal system? Mr Juman-Yassin challenges me to produce a local or Caribbean case that prohibits a magistrate from holding a voir dire. Having regard to the authorities I have cited, the onus is upon Mr Juman-Yassin to produce a case that permits a magistrate to hold a voir dire. I can cite dozens of cases from Guyana and around the Caribbean to show that voir dires are done by the trial court.
Mr Juman-Yassin next asserts that there is no statutory provision which prevents a magistrate from holding a voir dire. Again, the misconception surfaces. It is Mr Juman-Yassin who must cite a statutory provision that permits a magistrate to hold a voir dire.
Faced with this formidable conundrum and presumably without finding any legal authority to support him, Mr Juman-Yassin ingeniously argues that “Guyana is an independent country and we have developed our own customs and practice which can and do have the force of law.” This argument is both untenable and non legal.
I humbly submit that custom and practice become law over a very long and antiquated evolutionary process, for example, the relevant date in England is 1189. Additionally, there are very stringent requirements which must be satisfied before a custom crystallizes into law.
Thus according to Rose-Marie Belle Antoine, Commonwealth Caribbean Law and Legal Systems, Second Edition, 2008, at page 178, states, “Unlike the rules of the common law, customary rules of law are not judicially noticed or given recognition until settled by judicial decision…” Mr Juman-Yassin has cited none. And then at page 179, “… not surprisingly, claims to local custom in modern times are rare. This is particularly so in the Common-wealth Caribbean.” But then again, Mr Juman-Yassin may argue that this author is also wrong.
In the circumstances and with great respect, I see no sense in continuing this debate with Mr Juman-Yassin.
Yours faithfully,
Mohabir Anil Nandlall,
MP
