Dear Editor,
I read a letter in the Stabroek News newspaper today. It dealt with the power of a court official in P. v. Rickford Burke (2023). Permit me, Editor, to say that I feel strongly that since section 59 of Criminal Law Procedures Act 10:01, Laws of Guyana deal unequivocally with any irregularity of a summons, a Guyanese citizen ought not to criticize action taken by the Vigilance Magistrate’s Court magistrate which led to Mark Wesserman, an American, doing so at the New York residence of the accused. Further, in my humble view, if a Guyanese holding a law degree and has not gone on to get qualified with a Legal Education Certificate, takes this sort of approach in speaking out, it may tend to bring the administration of justice into disrepute, much less if a Guyanese who went on and earned his L.E.C. to do so in a letter addressed to an editor of a newspaper. This is something that should not be taken lightly in a democracy, as it signals a breakdown in society’s fabric.
It is trite law that a magistrate is fully authorized to do certain judicial acts the world over, and may jail a person if such action is deemed appropriate. To try to argue otherwise is mind-boggling to me. The simplest question to ask in this case is to enquire who deals unequivocally with the issue of summons and warrants. An instructive case is South Africa’s P. v. Willah Mudolo (2020), in Pretoria Magistrate’s Court presided by Magistrate Theledi. This case highligted an attitude taken in relation to a magistrate’s order. The accused, a Zambian national, was charged with money laundering and after being so charged appeared in the learned Magistrate’s Court and at his second appearance secured a favourable court Order. The facts were: In the first bail application in December 2020, Magistrate Thandi Theledi found that Mudolo was a flight risk, and issued a remand Order, ordering the cops to retain his passport.
In a new application, 6 months later, Mudolo’s lawyer after being fully briefed, argued that other passports linked to him contained incorrect dates of birth. He told the court that his client had corrected the error in 2018, and became the holder of one valid Zambian passport. The other facts were: that his health had deteriorated in prison; that the life of his family had deteriorated because he couldn’t provide for them financially; that the people working for him depended on him; that there were no income generation while in custody; that his mother had become ill; that his businesses’ failure was impending he being further imprisoned; And that the State had a very weak case against him. The State on the other hand, had unsuccessfully argued that Mudolo had failed to produce any proof of the facts accepted by the court.
Magistrate Theledi had set Mudolo’s bail with several strict bail conditions: that Mudolo was not allowed to leave the court’s jurisdiction. He couldn’t travel outside South Africa until the trial ended, couldn’t apply for any travel documents and had to report to the cops on Mondays and Fridays. The police failed to return his passport. Mr. Willah Mudolo took a Minister, a police official, and the National Prosecuting Authority to the high court. He asked for explanations. The law was: High Court Judge Joseph Raulinga accused police of second-guessing the magistrate’s court order. The judge said: “One is therefore incensed by the attitude of the respondents who chose to impose their own in relation to the magistrate’s order. They seem to have forgotten that the judicial authority of the Republic vests in the courts, thus making courts final arbiters in all legal disputes. Court orders can never be disobeyed even if they were wrong. As long as they have not been set aside, they must be obeyed.”
The judge said there was no confusion in the magistrate’s order, which read as follows: “Accused No. 1 bail condition not to travel outside of the borders of South Africa is amended in that he can travel outside of the borders of South Africa on condition that the investigating officer is informed in writing with proof of his confirmed accommodation booking as well as return flights 7 days prior to departure.” In conclusion, this writer has a similar view as that of Guyana’s Attorney General, the Honourable Member of Parliament, Mr. Nandlall. He had declined to comment on whether the Guyana government obtained permission from the United States for a Guyana Police Force officer to be involved in the service of summons to the accused Rickford Burke. He had stated that questions about the legality of service of summons was a court matter.
The writer understands that the adjourned date set by the learned magistrate at Vigilance Court, which is a court of competent jurisdiction to deal with it, is March 28, 2024, and that the accused has a lawyer on record. The background to the prosecution’s case is that the Guyana Police Force had filed two charges against Burke in his absence on August 18, 2023, after issuing two wanted bulletins for him in 2021 and 2022 respectively. The charges were filed at the Vigilance Magistrate’s Court in Burke’s absence.
This case will be a good one to ventilate the issue of foreign service of a judicial court document in the United States of America, and obviously become precedent-setting. It is crucial for the public to understand that when Magistrate Thandi Theledi in P. v. Willah Mudolo (2020), was addressing her mind to the accused while standing in front of her, that Willah Mudolo was charged with fraud, theft, and money laundering – the allegations: he defrauded others – very serious crimes and what was society’s interest in such a matter, an interest she had to take into consideration. In P. v. Rickford Burke, the accused is charged, inter alia, with incitement of ill-will based on race, and inciting public terror – also very serious crimes, would one expect the learned magistrate to do otherwise?
Sincerely,
M. Shabeer Zafar
Canadian solicitor (Ret’d)
