Dear Editor,
Stabroek News’ editorial note to a letter published under my name on April 11 (‘Organizations which have criticized Chief Justice Chang’s decision have their own extra-legal agenda’) states “Stabroek News at no time suggested in any of our reports of Ms Priya Manickchand’s comments on the Henry Greene issue that these reflected a Government of Guyana position.” This sleight of hand or attempted three card trick is good for comedic relief but does no good for Stabroek News as its own reporting shows otherwise (see page 12 of SN April 10).
Stabroek News in carrying the comments of Ms Manickchand specifically referred to her, in her capacity of a government functionary, both as former Minister of Human Services and current Minister of Education. Surely it had to be the intention of Stabroek News to convey the impression that Ms Manickchand was speaking on behalf of the Government of Guyana.
Moreover, why would Stabroek News call on Ms Manickchand for a comment on a legal matter when there are dozens of far more senior legal practitioners than Ms Manickchand all over Guyana, and who Ms Manickchand would agree are more experienced? The answer has to be that they sought her out as a government representative. No backpeddling can alter this.
Nevertheless, the issue for me is the abuse directed to Justice Chang by Ms Manickchand, Ms Backer and Ms Dana Seetahal SC, all of whom are attorneys-at-law, and their signal failure to grasp and appreciate the decision handed down, choosing as they have done to dance to social/political drummers and the marshalling of forces against Justice Chang, instead of advancing reasoned arguments against his decision.
For example, Ms Seetahal SC, on whose expertise Stabroek News anchored its reporting, sought to rely heavily, almost exclusively, on the Privy Council decision of Sharma v Brown-Antoine and others (2006) 69 W.I.R 379, painting a picture that Justice Chang overlooked this decision and moreover his decision sounded more like a defence lawyer’s submission. Isn’t this a cheap shot? Why did Stabroek News allow this kind of criticism to be published?
Either this is absolute carelessness, vindictiveness or a deliberate attempt to distort what was handed down as Justice Chang in his decision did not overlook that Privy Council decision.
Indeed Justice Chang confronted that decision and explained that certain dicta in it cannot be interpreted as laying a principle of law, that once the points raised in judicial review proceedings can be adequately dealt with in the criminal proceedings, the court of judicial review becomes powerless to grant a remedy.
Simply put, Justice Chang was at pains to explain that the procedure of judicial review does not become inapplicable merely because the points raised can adequately be dealt with in the criminal process.
He explained that such a situation strongly provokes the exercise of judicial restraint but does not provide an absolute bar to the court’s discretionary power to provide a remedy where the exceptional circumstances of the case warrant the grant of a remedy. He cautioned against a misinterpretation for what was stated by the law lords in the Sharma v Brown-Antoine case.
In the Sharma v Brown-Antoine case, it is quite clear, as Justice Chang explained that he was not purporting to lay down any rule of prohibition against judicial review of decisions to prosecute but was laying down reasons for judicial restraint.
The Privy Council stated at 398 b: “The Courts have given a number of reasons for their extreme reluctance to disturb decisions to prosecute by way of judicial review. They include…”
Ms Seetahal should be alerted to the following observation of the Privy Council at 390: “Where leave to move for judicial review has been granted, the court’s power to set aside the grant of the use will be exercised very sparingly, R v Secretary of State for Home Department, ex parte Nazir Chinog (1991). But it will do so if satisfied that leave is one that plainly should not have been granted.” These passages were cited by Simon Brown J in R v Secretary of State for Home Department,(1992) and we do not understand him, in his reference to delivering a ‘knock-out blow’ to have been “propounding a different test.”
The question is: Did the inter partes argument in the Henry Greene application plainly show that it was not a fit case for the issue of an order or rule nisi of certiorari and that the order or rule nisi ought to have been discharged? Justice Chang agreed with the applicant in answer to the DPP, that the DPP‘s advice was based on inadmissible evidence and without a proper assessment of the admissible evidence. That was his finding.
Surely, Ms Seetahal cannot be saying that the Privy Council decision of Sharma v Brown-Antoine precludes irrationality and illegality as grounds for judicial review of a decision to prosecute. If that is her position, then her interpretation of that decision cannot be right. Nothing said by the Privy Council in that decision warrants such a ridiculous conclusion.
The Privy Council never sought to immunise a decision to prosecute by the DPP, from challenge, on the grounds of irrationality or illegality.
Ms Seetahal’s concern about opening the floodgates is not unique to her. But such a concern seems to lose sight of the fact that it is the judges themselves who hold the levers of controlling the floodgates. The remedies, being discretionary, they may see it fit to refuse the orders or rules nisi or ultimately discharge it if granted in the first place.
Ms Backer’s criticism was purely political. Even though masked under the banner of APNU, she is still an attorney-at-law.
Yours faithfully,
Jerome Khan
Attorney-at-law
