Kindly permit a lowly third year law student to call upon the Bar Association and the DPP to act reasonably and in the interest of Justice.
This letter arises from the recent filing of a private prosecution against former President Bharrat Jagdeo at the Whim Magistrate’s Court for his alleged racial slurs. It is particularly concerned with the press release by Bernard De Santos, Senior Counsel (SC), his opinion and assessment of the charge and the subsequent appeal to the DPP.
Firstly, to my mind, the fact that a criminal charge was brought by a private citizen speaks clearly to the citizen’s view that the justice system of Guyana has failed. While private criminal matters are not unheard of, they often occur against a backdrop of public opinion that the accused in question has the ability to usurp the law, especially by political interference. To this end I make reference to our sister CARICOM nation of Belize where a recently concluded private prosecution was heard before Guyanese Chief Justice of Belize, Kenneth Benjamin. In this case a sitting Member of Parliament was brought before the court for his alleged involvement in facilitating the issuing of a Belizean passport to a South Korean national. The MP was immediately stripped of his Cabinet portfolio as Minister of State in the Ministry of Immigration. However, the Citizens Organized for Liberty through Action (COLA) called for the criminal prosecution of the MP but to no avail. As such the group launched a private criminal prosecution.
In the situation at hand, it is submitted that given the sensitive nature of the racial tension in Guyana at election time the media could have been more vocal in calling for the state functionaries to bring the criminal prosecution. However, after speaking with several colleagues, I am now convinced that such a call to action would fall on deaf ears. As such, one understands why a citizen would feel as if s/he had no other recourse but to file a private criminal prosecution.
Sub Judice and Contempt of Court
On this matter, SC purports to have examined both the statements made by Mr. Jagdeo and the section of the law under which the charge was laid. He goes on to describe the charge as “frivolous, vexatious, and an abuse of the process of the court”. His opinion here although bordering on recklessness can be viewed as an opinion and his interpretation of the charge though it is distasteful can be understood.
However, he goes on to declare that the filing of the charge “is a gross misrepresentation and colossal misuse and abuse of section 139D.” It is this ruling by the SC that I call on the Bar Association to examine and condemn. Careful consideration must be given to the ‘devastating consequences which will flow if’ attorneys are allowed to make publications which create a substantial risk that the course of justice in the relevant proceedings would be impeded or improperly prejudiced. The statement, to my mind, violates section 2 of the Contempt of Court Act, Chapter 5:05 of the Laws of Guyana.
Mr De Santos concludes his press release with hope ‘that this matter will be speedily reviewed by the Director of Public Prosecutions’. To this I say – such is the hope of many at Camp Street who are victims of the inordinate delays in the justice system. Although the DPP is a very busy woman, I believe that hope is a good thing; therefore I look forward to hearing how quickly the matter of the former President is reviewed. It is my suggestion that this matter is too significant to be speedily reviewed. Quite the contrary, this matter must be dealt with cautiously and diligently. This is in light of the fact that the DPP has the discretion to dismiss the charge against Mr. Jagdeo under Article 187 (3) of the Constitution of Guyana.
One can only guess, based on SC’s statements that he believes the DPP will share his view and dismiss the charge. To this I remind the DPP of the words of HWR Wade in his book Administrative Law “Unfettered discretion cannot exist where the rule of law reigns… all power is capable of abuse, and that the power to prevent abuse is the acid test of effective judicial review.”
This may very well be the most crucial review in the DPP’s career as it must be issued with the world watching. In the lead up to the May 11th election, all political matters with implications on the democratic process will come under scrutiny from the Carter Center as well as the OAS, both of which have been confirmed as sending observer missions.