The decision by Justice Ian Chang in the Henry Greene case is correct, of “landmark” quality, and a major contribution to legal history in the Commonwealth. Given the circumstances laid out in the depositions, the case, were it to hinge on the character of the witness and “evidentiary” matters, was headed for an acquittal and would have been a waste of time as well as an unnecessary call on the public purse. Attorney Neil Boston has to be commended for his contribution to this advance.
It counts not at all what one were to think of Henry Greene and the propriety of his actions, since propriety was not the matter under consideration. Rape, even in the almost absurd definitions now fixed in our legal code (where the victim’s sentiment of threat, subjective as it is, is supposed to satisfy the requirement for coercion) requires at the very least evidence of resistance or refusal. The fact is, the acting Chief Justice opens a way to arresting the abuse of process such as we just saw in the recent treason acquittal, where three citizens spent fifteen months in prison, facing a charge that was “bad in law”. The Mark Benschop case, similarly filed under treason, would have fallen down in some legal systems for lack of evidence of conspiracy and collapsed into “trouble to the public order” type of prosecution.
The courts in Guyana and the adversarial system we have inherited have become a burden to the citizenry and a focal point for all the injustices and inefficiencies fed on by the lawyer corps and the host of commensals feeding from the same table with them.
I recall in the mid-seventies a charge of illegal possession of ammunition being brought against one of my own. As kids we once lived in an area close to where GDF exercises (I think) were once held. Playing around after one such exercise, we found three or four live rounds. I myself put one in the glove compartment of the family car. Which, driven by my younger brother, got stopped at a road block. What was for us, hell, broke loose.
He would have been seventeen. The police quickly arranged a fake ID parade in which a man from an East Coast village was told to point him out as “the red boy” who had been terrorising the area for some time. We took a lawyer. I told him, having read it earlier, that since Crane writes that possession is composed of both “a mental element and a physical fact,” it would have been impossible to prove that the accused, driving a car used by several different people, even knew that the round was in the glove compartment.
I mentioned the scandal of the ID parade set up. The lawyer was happy and looked forward to the day in court. And then the fees for the appeal. Frankly, we reluctantly pulled a string. The phone call from on high. The whole set-up unravels. From that time I have had little respect for the abilities or fairness of the police force.
The point being that the misapplication and miscarriage of justice devalues the legal system and opens our eyes to the fact that what was being done to Mr Greene is of a piece with the machinations of a system of which he had made a career of being part. The police are still framing people. Laying false charges. Setting up the innocent. For the greater part of our post-independence life the judicial system and its enforcement arm has malfunctioned or worked inefficiently. From abuse and bribe-taking at the airport to the traffic cop stopping the taxi man, taking him to open the trunk and murmuring “Talk to me properly,” the force has been abused, contentedly, and even enthusiastically so also by the political system. Both post-colonial administrations have had periods where the police became their principal instrument of human rights abuses. It is our culture. Now, to prove this, we have elements in the society calling for Mr Greene to get what they feel in their innermost beings he has had coming. As members of one of the several categories of people in this country persuaded of an entitlement to revenge. They become, in their own mind, police, judge and jury.
Those calling for the Commissioner’s head will not fail to find Justice Chang’s quite rational ruling as having failed their agenda. But, justice is impartial. You do not charge a rooster with stealing and eating a steak. In some cases it was the steak that jumps into its mouth.