Gino Persaud's Law Blog

T & T Magistrate On Four Misconduct Charges

2012-01-23T08:03:00.001-04:00

T&T magistrate on four misconduct charges - Stabroek News - Guyana

(Trinidad Express) Questions have been raised about how Magistrate Avason Quinlan could continue to sit on the Bench and dispense justice when she is before a disciplinary tribunal on four charges of judicial misconduct in a bail-fixing incident involving two men accused of drug trafficking. Quinlan, who is married to Deputy Police Commissioner Stephen Williams, was charged with four counts of misconduct of a serious nature by the Judicial and Legal Service Commission (JLSC)—the body responsible for investigating complaints of misconduct against judicial officers—early last year, following a formal complaint that she allegedly violated a judicial canon that prohibited her from hearing a matter without the requisite case information before her and tampered with another magistrate’s remand in custody order. She is accused of fixing bail with a surety in the sum of $10,000 for each of the two men, four hours after they were denied bail and remanded in custody by her colleague sitting in the Port of Spain drug court, Magistrate Brian Dabideen. A two-page statement of charges accused Quinlan of improper judicial conduct in a June 29, 2009, bail-fixing incident in the Port of Spain arms and ammunition court. Quinlan has denied all charges of wrongdoing but has been unable to explain how the men, Robert Spencer and Anthony Wilson, who were earlier that day remanded in custody and were being held in the downstairs holding cell in the Port of Spain Magistrates’ Court, came to be in her courtroom. Dabideen, in a formal complaint filed in July 2009 with Senior Magistrate Lucina Cardenas Ragoonanan, said the men were not represented by counsel when they appeared before him, refused to be fingerprinted and admitted to having criminal records. He ordered that they be remanded into custody until the next day, pending a background check. When the men appeared before him the following day, they had lawyered up and were out on bail. On checking the paperwork, Dabideen said he discovered that his previous order had been “crossed off” and bail granted with a surety in the sum of $10,000 for each of the two accused. The tracing report showed that both men had previous drug convictions. One of them, Spencer, had two previous cocaine trafficking charges within the last 15 years and was not entitled to bail under Section Five of the amended 2008 Bail Act. Dabideen revoked Quinlan’s bail order for both men, which he said were improperly granted. In his affidavit to the JLSC-appointed investigator, Justice Maureen Rajnauth-Lee, the magistrate claimed he was told that Quinlan called the two drug trafficking cases later that same day in courtroom 4B, the arms and ammunition court, “tampered with my endorsements and fixed bail in circumstances where there was no tracing report and prior prosecution’s objection to bail”. He claimed staffers in the Office of the Clerk of the Peace told him that the prisoners’ case information was taken to courtroom 4B at the request of Magistrate Quinlan and that the transcript of the proceedings clearly showed she knew that the two drug cases were earlier that day adjudicated upon. According to the official court record, both men told Quinlan they had appeared before a magistrate earlier that day. The transcript (see below) showed this exchange: Her Worship: “All of you didn’t get bail?” Robert Spencer: “No, Ma’am.” Anthony Wilson: “No, well-.” Her Worship: “All of you get charged for selling nuts or something?” Robert Spencer: “I was selling beef.” Her Worship: “And what were you charged for?” Anthony Wilson: “They charge me for smoke, herbs.” Her Worship: “You came to court already for the day?” Anthony Wilson: “Yes.” Her Worship: “You saw a magistrate already for the day?” Anthony Wilson: “Ah Indian magistrate.” Her Worship: “And what he told you?” Anthony Wilson: “He tell me tomorrow.” Her Worship: “Mr Godson Phillips, either of these two people belong to you by way of clients?” Attorney Patrick Godson Phillips, counsel for the two accused: “Yes, Ma’am.” Her Worship: “They appeared in court already?” Godson Phillips: “Spencer.” Her Worship: “Both of them said they appeared in a court already.” Godson Phillips: “Spencer has a matter before the court.” Her Worship: “No, I mean today, on these charges.” Godson Phillips: “You all appear in court, sirs?” Defendants: “Yes.” The audio recording was stopped at this point at 3.07 p.m., June 29, 2009. Last week, the one-man disciplinary tribunal appointed by the JLSC to enquire into the allegations of judicial misconduct heard evidence from the clerk in Court 4B, Ria Ramroop, that she was instructed by Quinlan to stop the audio recording. Ramroop was suspended following a record-tampering complaint made by Quinlan after the judicial misconduct charges related to the bail-fixing incident were levelled against her. And in what is fast turning out to be a messy judicial affair, a staffer from the court reporting services of the judiciary last week testified on oath before Justice Anthony Carmona to evidence of two transcripts, one with headings identifying the players in the exchange of courtroom conversations recorded on the afternoon of June 29, 2009 and the other, with headings that refer to the speakers as “Unknown 1, Unknown 2, Unknown 3, etc”. The Sunday Express was told that in earlier conversations with other judicial officers, the staffer had stated she was instructed by Quinlan to make a transcript of the recorded court hearing without the identifying headings. The disciplinary tribunal now has before it two versions of the transcript. Quinlan, in her initial statement of defence to then chief magistrate Sherman McNicholls, dated July 16, 2009, said on the resumption of court hearing at 1 p.m.: “I observed two men sitting in court for most of the afternoon. When I got to the end or near the end of the late court list, those two men were still sitting in court.” She identified the men as Spencer and Wilson. According to Magistrate Quinlan: “The note-taker enquired from the persons in the process section if those informations has been laid, and the clerk said yes. We waited for the the informations for some time. Eventually, the note-taker left court and went downstairs to get them herself since by that time, there were no more matters on the list.” Quinlan said that on her note-taker’s return to court 4B, she was told that the paperwork relating to the two men could not be found and that it would be sent to her court as soon as it was located. The presiding magistrate in the arms and ammunition court said: “Eventually, I heard bail applications from the attorney. After hearing attorney’s submission, representation was made from the wife of one of the men. This representation was that he suffers from epilepsy and has severe fits. The other person was charged for a similar offence. I also heard that application. After the submissions, representations and no objection to bail from the prosecutor, Inspector Morgan, the court made the decision to fix bail in the same amount for both persons. I indicated in open court that I would fix bail with a surety for the two men in the sum of $10,000.” The Quinlan statement said: “Up to that time, I had no indication that these persons had appeared in the morning and, therefore, I could not have known that any order of remand in custody for tracing and bail was made. When the case sheet came, instead of a clean case sheet, a case sheet from the 4A court came. It was only then that I realised that the men appeared in the morning. I read the magistrate’s endorsement. Since I had already indicated in open court my position with respect to bail, I felt it would have been unfair to revoke bail. I decided, instead, to write my order, bail with a surety in the sum of $10,000. And leave the matters for the following day as the magistrate in the morning had endorsed.” The explanation Magistrate Quinlan gave for her decision to allow bail was that she sought to “balance the interests of the accused” with that of the State. She said her colleague, Dabideen, was “mistaken” when he suggested that he brought the matter to her attention since on the following day, June 30, 2009, she approached him for a private chat in the kitchen. “My reason for speaking to the magistrate was out of courtesy. In my conversation with the magistrate, I explained what transpired on June 29, 2009. I am aware that the magistrate revoked the bail. I saw the exercise of his jurisdiction as part of the normal duties of magistrates since on a daily basis and by virtue of our concurrent jurisdiction, magistrates are called upon to adjudicate on bail orders made by other magistrates. Having fulfilled my intention explaining what had transpired the previous day, we parted ways,” said Quinlan. She contended that: “Magistrates are aware that the official record of court proceedings are the case sheets—on which magistrates write, and not the information —on which the note-taker replicates the magistrates’ orders.” In her statement, Quinlan said: “At no time did I tamper with the information by scratching off any endorsement nor did I recall the matters to be heard before me.” Reached for comment yesterday, Quinlan’s stock response to questions was: “I have absolutely no idea what you are speaking about.” Dabideen did not respond to calls for a comment, and the JLSC-appointed prosecutor and newly appointed president of the Industrial Court Deborah Thomas declined comment when contacted. No one was prepared to comment either on the criteria used for judicial suspension or why former deputy magistrate Herbert Charles was suspended from duty at the start of the investigation into a complaint of judicial misconduct made against him. He was subsequently demoted to senior magistrate.

Former President Of The CCJ On The Appointment Of Senior Counsel

2012-01-05T08:54:00.002-04:00

Award of silk to T&T Chief Justice an aberration – De la Bastide - Stabroek News - Guyana

(Trinidad Guardian) Former chief justice and president of the Caribbean Court of Justice Michael de la Bastide says the award of Senior Counsel (silk) to an incumbent Chief Justice or to a sitting judge of the Court of Appeal of T&T is an “aberration.” De la Bastide said so in a letter to the editor yesterday, five days after Chief Justice Ivor Archie and Court of Appeal judge Wendell Kangaloo were given silk by Attorney General Anand Ramlogan. Archie, Kangaloo, Prime Minister Kamla Persad-Bisessar and Ramlogan were among 16 lawyers who climbed the legal ladder to Senior Counsel last Thursday. In his strongly worded letter, de la Bastide said the award of Senior Counsel is for practising attorneys not for judges.
Ivor Archie
Following is his letter: The award of silk to an incumbent Chief Justice or to a sitting judge of the Court of Appeal of T&T is an aberration which if previously committed, should not have been repeated. The simple fact of the matter is that elevation to the rank of “Senior Counsel” or the award of silk, as it is called, is an honour which can appropriately be conferred only on “counsel.” This term originally meant practising barristers but with the fusion of the legal profession in T&T has come to mean any practising attorney. It has also been extended to attorneys who, though not practising, have distinguished themselves in the academic field. There is no definition or interpretation of the term “counsel” that can include a judge of a superior court of record. Before we became a republic those awarded silk were designated “Queen’s Counsel” and their appointment was made by Letters Patent from the Queen. Since we became a republic, the designation is now “Senior Counsel” and the instrument of appointment is issued by the President of the Republic, on the advice of the Prime Minister.
Further, the expression “taking silk” is a reference to the silk gown which a person who has “taken silk” is entitled, and indeed required, to wear in court. Another practical consequence of taking silk is that an attorney who does so is thereafter required to have a junior when appearing in court. The fact that a judge has been a practising attorney (however distinguished) before assuming judicial office, or may after a prescribed period return to practice after he retires, cannot serve to qualify him for the award of silk while he is still on the Bench. It is fundamental to our concept of justice that the roles of judge and counsel be kept strictly separate and distinct.
Michael de la Bastide
Those who accept judicial office are required to forego many of the advantages and opportunities that were available to them while in practice—one of these is the possibility of taking silk, at least while still on the Bench. The argument that sitting judges must be allowed to prepare for their return to private practice after they demit office is plainly unsustainable. The law at present prescribes that a judge of the Supreme Court may not appear before the courts of this country for a period of ten years after demitting office. Even if this period were halved by an amendment of the law, this would still leave ample time for the retired judge to apply for silk if he so wishes.
Alternatively, before going on the Bench the prospective judge can apply for silk and if he is worthy of it, presumably it will be granted him in short order. In practice, it is very rarely that a retired judge in this country returns to court practice. I am strongly in support of the contribution made by judges being recognised in a tangible way. The method which has been used previously is the grant of national honours. In the case of the Chief Justice, the practice has been to award him the highest national honour, previously the Trinity Cross and now the Order of Trinidad and Tobago. If this practice is adhered to, it will save us the embarrassment of providing our Commonwealth partners with a possible source of concealed amusement over what is an obvious gaffe. Finally, I would suggest that it is time that we follow the example of the United Kingdom and remove the grant of silk from the hands of the politicians and make it the responsibility of an independent panel which would include representatives of the legal profession as well as representatives of civil society. Suitable criteria should also be formulated to guide this panel and these criteria should not include the holding of any particular office, political or other.

Trinidad Working To Implement Death Penalty

2011-12-30T07:35:00.001-04:00

T&T Govt working to implement death penalty – PM

(Trinidad Express) Prime Minister Kamla Persad-Bissessar says Government will work to implement the death penalty as part of a serious crime reduction tool. Persad-Bissessar was delivering an address yesterday at the Ministry of National Security Planning Workshop organised by the Center for Hemispheric Defense Studies (CHDS) yesterday at the Hyatt Regency (Trinidad) hotel, Port of Spain. With 30 murders in the first 21 days of the year, she said Government is aware of the upsurge in the homicide rate although it has been reduced significantly from 2009 to 2011. “Despite the fact the statistics for 2011 reveal a decrease in homicide and serious crime, Government is appalled at the brutal nature of the crime. The cautious optimism with which we viewed last year’s statistics…should not be misinterpreted as complacency,” she said. She said because of this the People’s Partnership government is prepared to use all the resources including the death penalty to vigorously pursue and contain criminal activity. “To this end my government is committed to implementation of the death penalty which remains part of the laws of Trinidad and Tobago…We shall continue in our effort to facilitate the re-implementation of the death penalty so it might both punish the guilty and deter the would-be offenders,” she stated. She said regrettably the Constitution Capital Offences Bill 2011 which required a special majority in Parliament did not receive the support of some members She said her Government that had introduced 11 other pieces of legislation to aid in combating, including the Abolishing of the Preliminary Enquiry Act, the DNA Bill among others. Persad-Bissessar said since her Government took office back in May 2010, it had been attempting to address “the tsunami of crime that has hit Trinidad and Tobago”. “We have pledged to the people of this country that we are going to rid the country the scourge of criminal elements which have been allowed for too long to thrive and prosper on the decent, innocent and hard-working people,” she said. She added that the Government was compelled to admit that criminal violence occurred too regularly. Earlier in her address, Persad-Bissessar crime and violence threatened the welfare of citizens and economic growth. Minister of National Security John Sandy said the workshop was aimed at developing a policy where the Caribbean Basin becomes a safer and more secure place to work, live and do business. Attending the workshop were United States Ambassador Beatrice Welters, Commissioner of Police Dwayne Gibbs and various Government MPs. At a People’s National Movement (PNM) general council meeting yesterday in Port of Spain, PNM Public Relations Officer, Senator Faris Al-Rawi, said it is untrue that the Opposition failed to give its support to the bill. Al-Rawi said Government is the one that has failed by its refusal to move from the Privy Council system to the Caribbean Court of Justice (CCJ), which would deny criminals the right to have their final appeal subject to European and United Kingdom law. “The move to the CCJ is a very important one,” Al-Rawi said.

Go Out And Vote

2011-11-27T23:44:00.001-04:00

VOTE intelligently on issues and right reason NOT RACE. For your own self development and for the development of our country and the maturity of our democracy, guard against voting for a party out of blind loyalty and/or out of racial preference because you believe that particular party represents your ethnicity. We need to break this mould. Be a critical, analytical and thinking voter. Your country deserves a thinking vote. Once you have peace of mind and a satisfied conscience after discharging your constitutional duty then hold your head high. To my apathetic friends I say “your silence will not protect you.” And to my friends who want change I say “be the change you want to see” Your dream could start with your casted ballot. As for me, when I am casting my ballot tomorrow I will be thinking of Martin Luther King Jnr when he said “our lives begin to end the day we become silent about things that matter.”

Trinidad Extends State of Emergency For Three Months

2011-09-04T19:05:00.001-04:00

Emergency rule extended for three months in Trinidad - Stabroek News - Guyana

Emergency rule extended for three months in Trinidad
By Stabroek editor | 0 Comments | Local | Sunday, September 4, 2011

PORT OF SPAIN, (Reuters) – Lawmakers in Trinidad and Tobago approved a three-month extension of a state of emergency today after Prime Minister Kamla Persad-Bissessar said it had averted “a criminal uprising” in the energy-rich country.
The measure, suspending some constitutional guarantees and giving the police and military sweeping powers to make arrests, was first declared on Aug. 21 and had been due to expire on Monday.

Parliament approved the three-month extension with a simple majority vote after Persad-Bissessar said the “criminal underworld” was bent on sowing “bloodshed and mayhem” in the south Caribbean country.
Trinidad, a leading exporter of liquefied natural gas to the United States, has faced a growing crime problem stemming from heavily armed street gangs.
Members of the opposition People’s National Movement voted against the extension of the emergency rule, saying it was unfairly targeting black communities in the twin-island nation, which is divided almost equally between descendants of black Africans and East Indians.
But Persad-Bissessar told a parliamentary debate the emergency, which has led to more than 1,400 arrests so far, was strictly aimed at halting runaway crime.
It was clamped on the country after police blamed a recent spate of murders on the drug trade and turf wars over smuggling routes through Trinidad and Tobago, which is a trans-shipment point for South American cocaine headed to Europe and the United States.
In her comments to parliament, Persad-Bissessar said the emergency was also required to prevent violent reprisals against the police and other authorities for recent drug seizures in Trinidad.
“The nation had been saved from a criminal uprising of untold proportions. That did not occur. It was stopped in its tracks with the state of emergency,” Persad-Bissessar said.
“The threat to public safety, law and order was real and imminent. The planned retaliation by the gangs involved in the drug trade represented a clear and present danger to national security and innocent law-abiding citizens of this country,” she said.

SN: Guyanese Is New Belize Chief Justice

2011-09-04T18:57:00.001-04:00

Guyanese is new Belize Chief Justice - Stabroek News - Guyana

A Guyanese has been appointed the new Chief Justice of Belize.

7newsbelize.com has named Kenneth Benjamin as the island’s new head of the High Court and said he is expected to take up his appointment on September 15.

Benjamin, who also holds citizenship in Antigua, has worked as a Chief Magistrate in Antigua and Barbuda and he is a former High Court Judge of the Eastern Caribbean Supreme Court. More recently, he was employed as a judge in St Lucia, a post he would leave to take up his new position in Belize.

Benjamin graduated from Hugh Wooding Law School in 1977 and practiced law in Guyana before moving to Antigua in 1991.

Letter To The Editor

2011-08-29T08:36:00.001-04:00

Are our Judges and Magistrates powerless when it comes to upholding courtroom standards? : Kaieteur News

Are our Judges and Magistrates powerless when it comes to upholding courtroom standards?
August 29, 2011 | By KNews | Filed Under Letters

Dear Editor,
I am now a retiree from the Military Force. I have been spending some time in the various court rooms throughout Guyana. Some of my time is being spent in the High Court and the Magistrates Court.
During my time in these court rooms, I have observed total indiscipline by lawyers and John Public. Lawyers wear coloured clothing and are permitted to talk to the court. Lawyers are allowed to carry on conversations at the bar table.
Lawyers tout in the court room, while court is in session and they are allowed to speak on their cell phones while court is in session. Lawyers are allowed to wear sun shades while they are in a court of law.
John Public eats and drinks in court, he speaks on his cell phone while court is in session. He is permitted to wear whatever he wants to wear to court. I have seen John Public reading the news papers in court, while court is in session.
Not so long ago, our previous judges and magistrates upheld court room etiquette. It seems to me that court room etiquette has left with them.
I would like to know, which Judge or Magistrate, today, is prepared to prevent me from wearing my complete beach wear to a court? Which law tells them that they can stop me from wearing what I want to wear in court?
I would like to know which Judge or Magistrate is prepared today to tell me not to talk on my cell phone while court is in session.
Which law gives the Judge or Magistrate the power to stop me from talking on my phone while court is in session?
It is obvious to me that John Public can talk on his phone in the court room, or send a text message to a highly skilled marksman to wipe out the Judge / Magistrate and the Prosecutor, or just cause chaos.
When I am on a plane, I have to take my phone off because the signals interfere with the navigation. I comply. When I visit courts overseas, I have to lodge my cell phone outside of the court and I have to be scanned before I enter the court. I also have to be neatly dressed. I cannot wear a hot colour to an overseas court of law.
This is my question to the judiciary – Are our Judges and Magistrates powerless when it comes to upholding court room standards? Where are we heading with this downfall?
I would really like whoever is in charge of the judiciary to reply to my letter and prove the man wrong who said those who have eyes cannot talk and those who can talk have no eyes. I am certain that the person in charge of the judiciary is a disciplined individual. I am looking forward to a reply.
George O.S. Franklyn

Candle Light Vigil for Sr. Bee

2011-07-27T15:34:00.006-04:00

If you had the good fortune, the pleasure and the privilege of encountering or knowing Sr. Beatrice Fernandes and if she touched your life or warmed your heart then please join the many others this evening (27th July) at the Ursuline Convent in Camp Street, Georgetown in tribute and collective honour.

This remarkable nun who drove her white mini bus all over this country touched my life and many others. She was an integral part of the growing up experience in the Catholic Church and a beacon for many catholic teenagers. She was that beacon, that rock of stability. One could tell her anything under the sun and she would give you sensible guidance with the religious twist. You couldn't come of age as a catholic youth if you didn't encounter this ebullient nun who had a passion for life and working with youths. You could not be a well grounded teenager if you didn't encounter Sr. Bee. She made you want to love and serve God. She made you enjoy your own youthfullness with the many activities and retreats she led. Camp Kayuka was not Camp Kayuka without the Bee singing, with her guitar and those memorable campfires.

I'll miss her hugs. It's the first selfish thing I thought of when I heard the sad news. I'll miss those darn hugs. She gave the best hugs. They were warm, long lasting and bear-like. They made you feel really special. She made you feel really special. But when you thought you were special you could bet there was another few hundred "special persons" after you who felt exactly the same way.

She will be terribly missed. When persons like Sr. Bee are involuntarily removed from our lives their absence leaves behind a tremendous emptiness - a lingering pain.

Attorney General Finds Arbitrary 72 hour Detention Disturbing

2011-07-10T12:58:00.004-04:00

AG finds arbitrary 72-hour detention ‘a little disturbing’ : Kaieteur News

AG finds arbitrary 72-hour detention ‘a little disturbing’
July 10, 2011 | By KNews | Filed Under News

‘When I was a practitioner it could not happen

Attorney General, Senior Counsel, Charles Ramson, has described the 72 hours detention period by the police more than a little disturbing. He added that he is not happy with the misuse of the approach.
Ramson, in an interview with this newspaper on Friday, said that he publicly raised the issue with the then ‘C’ Division Commander of Police, Gavin Primo.
According to the Attorney General the issue seems to have slipped through the scrutiny of practising lawyers.
Ramson further stated that if what is reported in the press is accurate it would not be inappropriate to justify the view that it is perhaps pervasive that the police can pick somebody up without evidence and lock him up for 72 hours.
“That is not what the constitution says. However, that view has permeated the Guyanese judicial system. Something has got to be wrong with the lawyers.
“When I was a practitioner it could not happen.”
Since his public disapproval of the detention Ramson said he has noticed some lull in the activity.
Attorney at law Nigel Hughes during the detention of Nation of Islam Advisor, Akbar Muhammad, last month had highlighted the problem.
A retired judge was of the same view. He too saw the arbitrary detention of an individual by the police as an abuse of power.
He said that the law was intended in serious cases where the police have reasonable suspicion about a person’s involvement. The detention would allow the police to conduct their investigation while preventing the suspect from fleeing the jurisdiction.
“It was never intended for a policeman to use his power to lock up an individual with whom he has a personal grudge, or against whom he may wish to prove a point.”
He said that a person’s liberty is enshrined in the constitution and every time a policeman routinely detains a person that policeman is in breach of the constitution.
He said that the sad reality is that it is difficult to pursue legal action in such cases.
An attorney at Law said that he was aware but that he could not do anything against the detention save file a writ of habeas corpus to seek the individual’s release.
But another lawyer, Khemraj Ramjattan said that he had challenged the arbitrary detention of three men and won a judgement in the court. In this case, the state appealed and a judge reduced the extent of damages, he said.
Asked why more lawyers do not pursue legal action for unlawful detention, Ramjattan said that lawyers always want a fee before they enter the courts. They are not prepared to work pro bono with the result that the ordinary man must suffer.
Therefore, as things stand, the police can pick up anyone and lock them up for 72 hours, safe in the knowledge that nothing would happen.
Ramjattan said, “Only in Guyana.”

Stabroek News Article - Parliament Passes Protected Areas Legislation

2011-07-08T07:02:00.002-04:00

Parliament passes protected areas legislation.

Kaieteur News: 18 Hours Detention Of Teen In Lockups

2011-06-29T06:52:00.002-04:00

Another familiar story similar to some of the human rights cases I have been asked to assist in.

On Lord Denning

2011-03-12T01:10:00.002-04:00

I found these interesting pieces on Lord Denning, perhaps the greatest Judge of the common law in the last century. They were published just after he died in 1999 aged 100.

UK Guardian: 6th May, 1999

BBC: 5th March, 1999

Plea Bargaining In Guyana

2011-03-11T22:47:00.003-04:00

Some time ago I wrote this article on plea bargaining.

The Stabroek News also carried this article.

Firing Of Officer McBean, British Chevening Scholar

2011-03-11T22:25:00.007-04:00

Stabroek News: Ambitious, industrious and unemployed

29 September, 2009

Apparently this was published some time ago but I only recently came across it online.

New Year - New Possibilities

2011-01-02T10:46:00.009-04:00

So we've entered the second decade of the twenty-first century and there is great interest as to who will emerge as the presidential candidates for the two major ruling parties. It's an election year - well, hopefully, given all the conspiracy theories afoot that elections will be delayed.

In an unprecedented move, eminent Statesman, Senior Counsel and Speaker of the National Assembly, Ralph Ramkarran has publicly expressed his interest with a full page advertisement in the newspaper. I was actually quite surprised at this audacious move which I thought was quite out of character.

For the first time since universal adult suffrage in 1953 the PPP will be contesting an election without a Jagan on its Executive Committe. There will be no influence of a Jagan in this year's frenzied political hustings and on the worn campaign trail.

For the first time in Guyana's post colonial history men of all ilk have thrown their proverbial hat into the political ring. Guyana's version of the US primaries has started in an ad hoc hapzard fashion with no internal party statutory rules on how the selection will be made. With no clear rules, precedent or guidance the men of all ilk have chosen individual strategies on how best to comunicate to their party, their constituents and the country that they are interested - dat dey want de wuk! After all, in fairness to everyone, goat ain't bite nobody.

Ralph Ramkarran could be the first PPP Lawyer to lead the party into a general election and possibly lead the country. However, lawyers have never fared particularly well in the fold of the PPP. Khemraj Ramjattan was a rising star within the party but was expelled in a cleverly orchestrated move. Moses Nagamootoo has been effectively guillotined. He was a serving Minister of Information and chose to take a political leave of absence to study law that ultimately saw his fall from grace. Today, he is a practicing lawyer that was never able to make it back into Cabinet. He also failed to make it back into the Executive Committee of the PPP despite pulling the fifth highest number of votes at the last Congress.

Traditionally PPP lawyers have seemed unable to catapult themselves into the final leg of the leadership race. In fact, the PPP has always displayed a clear propensity if not an unexplained aversion to keeping legal experts and expert legal advice close to its chest.

Granger brings security to the table. Basil Williams also brings a legal background to the table. Donald, I'm not sure what Donald brings to the table having never served at any senior government level.

Anxiety is high. Tension is building and everyone is waiting with bated breaths to see who will emerge as victorious candidates to begin dusting the campaign trail. Ironically, it is the the PNC who have already shortlisted five candidates and are presenting them to the public by way of town hall meetings. Whether this is a farce or not, since rumour has it that David Granger is highly favoured to be given the nod, it is commendable and brings some openness to the table.

Meanwhile, there are rumblings from Freedom House that recessive political DNA genes are now becoming dominant; one person seems to be visibly favoured over the others by accompanying the President overseas and on Cabinet outreaches; another is threatening to withdraw from a process that does not involve the input of the grassroots supporters or a special congress and the most senior lawyer within the party has abandoned his traditional conservative approach and is actively lobbying for a selection process that is fair and transparent.

Very very exciting times.

Ralph Ramkarran Officially Declares His Interest

2011-01-02T00:21:00.001-04:00

Obituary: Lord Bingham

2010-12-26T21:43:00.003-04:00

I recently came across this obituary in the UK Guardian of Lord Bingham. He was one of the finest common law judges in the world and quite arguably England's best contemporary Judge.

Read obituary here.

Judicial Review Act Passed

2010-10-22T06:14:00.008-04:00

Attorney General and Senior Counsel Charles Ramson must be congratulated for finally tabling judicial review legislation successfully in Guyana. This is a historic (a)Act and will prove to be a landmark piece of legislation.

Judicial Review was long overdue since legal practitioners in Guyana have been using the antiquated remedies of prerogative writs that are governed by technical and outmoded rules that are over one hundred years old.

Read Stabroek News article here.

(GINA Photo)

Murder of Richard Stuart - Proud Graduate Of University of Guyana

2010-10-19T19:36:00.004-04:00

My dear Belizean friend and brother Richard Stuart was murdered along with his wife Maria in Belize. Richard was probably the first Belizean to study law in Guyana. He loved Guyana intensely and came back many times to visit. He was fascinated by its people, politics and culture. He was responsible for other Belizeans coming to study at the University of Guyana. He was an honorary Guyanese and a close family friend of mine. We kept in touch over the years and I last saw him in December, 2009 when he came to participate in the ordination of the local Anglican Bishop. He was a prominent lawyer and politician in Belize.

See news links below.

Stabroek News

Demerara Waves

No Independent Probe Into Unlawful Killings

2010-09-22T06:34:00.008-04:00

Stabroek News

In its response to the United Nations Universal Period Review the Government of Guyana has stated that it does not accept the need for another inquiry thereby rejecting UK and Canada's call for an independent probe into allegations of unlawful killings by a phantom squad. The administration has, however, said it will consider a recommendation by Canada to invite the UN Special Rapporteur on Torture to conduct an assessment of torture here.

Keith Burrowes On Character Assassination And The Internet

2010-07-24T12:14:00.004-04:00

Kaieteur News: 27 June, 2010

This week, I want to touch on a topic that I believe not only has relevance right now but is going to receive far greater focus in the upcoming months, in the lead up to the general elections to be precise. That issue is of course the use of the Internet. First I should say that I am big fan of the World Wide Web. As a professional, I can't conceive of doing my job properly without web access, from general communication to sharing or receiving documents. I can't underscore how much a relief it is me to be able to e-mail this column in as opposed to having to have somebody physically taking it to the editor on hardcopy of even on flash drive.

In my personal life, the Internet is a godsend when it comes to keeping in touch with family and friends who I would not otherwise been able to keep in contact with due to distance apart or busy schedules, particularly my own I have to admit. That said, there is of course a flip side to all of this. There are hazards. One of my concerns was that we were ill prepared for the potential pitfalls that a sudden boom in access to web-ready computers could bring, particularly with issues like child predation and access to pornography, issues that have been troubling ones for other societies in which there is widespread Internet access. Indeed, with the Guyana Telephone and Telegraph Company due to activate its E-magine campaign in four days – an initiative that is expected to at least double the speed of the Internet locally – I think that there is now no time more pressing than the present to at least begin looking at some of these issues.

There is, however, another area of concern that I think is far more pressing and volatile than the issue of minors being endangered by bad people on the Internet, and I can only foresee the situation escalating in the upcoming months. I am talking specifically about the abuse of the anonymity and the capacity for widespread dissemination of information that prevails when the best qualities of the Internet are twisted by people with narrow and subversive agendas.

I want to say first of all that in situations which warrant it, anonymous use of the internet as a tool for the dissemination of information can be expected, even welcome. Persons getting information out of other societies in which the ruling regime would otherwise suppress that information can either be anonymous or put their lives on the line. People employed by corporations that are flagrantly breaking the law usually have that means as their only reliable way of making first contact in a whistle-blowing endeavour.

The problem comes when the very avenues used to speak the truth while protecting oneself from unfair or malicious persecution, have become the very avenues that people use to peddle lies and protect themselves from rightful and just prosecution. The Internet has virtually revolutionised character assassination and slander, giving those who engage in it the power to in seconds what their predecessors would have to do in days or even months.

A few months ago, I had cause to publicly address an e-mail campaign against me, in which the author or authors sent messages to friends, co-workers and even family making claims so ludicrous that anyone who knows me well enough would easily dismiss, but not so ludicrous as to cast at least the shadow of a doubt in others, most importantly, people who I have to deal with in my capacity as a public figure, professional relationships which rest primarily upon my credibility and honesty.

Needless to say, after a public challenge, the anonymous campaign ceased.

Now recently, it has started again, but this time what they've done is to make accusations of a more personal nature, one in particular which it would be problematic to defend in the first place, not because there is any truth in it but because there is no way that you can refute it strongly in a public way without further fanning the flames of the allegation in the first place.

The strange thing is, in some ways I can consider myself fortunate. When whoever e-mails their slander to my friends and colleagues and family members, despite the very fact that some people are going to forward those mails, the shelf-life for such malicious character assassination is, frankly, only temporary.

For others though, the stain is much more permanent, since the misinformation, untruths, lies, character assassination have found a permanent home on blogs and discussion forums across the Internet. I personally am not up to date with blogging and social networking but the anecdotal evidence reaching me about what is going in the local blogosphere makes you sick to hear even a paraphrasing of what is being said about public figures out there – and make no mistake, this is a political phenomenon.

I know of cases where persons have had their integrity, their business dealings, their fidelity to their spouse or their spouse's fidelity to them, and their sexual preference being called into question, and more often than not by linking what are clear lies to a little sliver of truth.

And because this a political phenomenon, we can expect the vitriol to become even worse as the campaigning for the general elections next year heats up.

My take on it is that efforts should be undertaken to nip this thing in the bud now, before it becomes even more out of hand, with the political directorate taking the lead in denouncing the excesses of the anonymous bloggers. (Keith Burrowes)

NY Times Editorial - A Victory For Writing

2010-07-24T10:47:00.001-04:00

US Senate passes Bill that protects Americans from foreign libel judgments.

NY Times Op-Ed

2010-07-24T08:00:00.003-04:00

David Brooks: The Moral Naturalists

Law Firm Highlights Failings Of The Land Registry

2010-07-18T21:55:00.008-04:00

Following on from the concerns raised here and here, Senior Counsel Ralph Ramkarran on behalf of Cameron Shepherd, a leading law firm in Guyana, blasts the calamitous state of the Land Registry.

Leon Rockliffe is a veteran lawyer and a specialist in land law who worked in the Land Registry when the land registration system was implemented. He is of unimpeachable character.

Ralph Ramkarran is the Senior Partner in Cameron and Shepherd and is also Speaker of the House of Parliament. He is a formidable contender for the presidential candidacy of the ruling party.

It is heartening to finally see public support for Leon Rockliffe on this issue who has been the lone torch bearer on a noble quest to work towards the seemingly simple but apparently herculean task of the Land Registry fulfilling its statutory mandate in an effective manner. However, with each passing letter and no improvements one is left to wonder if this task is really akin to cleansing the mythical Augean stables.

Case Study Of A Former Amerindian Prisoner

2010-07-18T02:44:00.002-04:00

Justin John was quietly acquitted on June 16th, 2010 on a charge of murder - a date of historical significance as the country observed Enmore Martyrs Day.

John's length of incarceration without bail from his arrest in 2003 encapsulates the failings of the criminal justice system and highlighted an egregious breach of his constitutional and human rights. It took him seven years to secure a jury trial in the High Court which ultimately resulted in his expected acquittal.

Justice Ramlall directed the jury to return a formal verdict of not guilty after Mr. Vidyanand Persaud for the defence made no case submissions. The prosecution produced one witness, a police officer. They were unable to produce additional witnesses stating that they could not be found. No interpreter was provided for the accused both at the preliminary enquiry and in the High Court. He speaks very little English which he learnt in prison. He is fluent in his Amerindian dialect and he speaks Portugese.

John is an Amerindian from Karasabai who was charged in 2003 for murder. His preliminary inquiry at the Lethem Magistrate's Court took five years to complete with evidence being led once a year for the first three years then a few times in the fourth and fifth year. He was committed to stand trial in 2008 but was unable to secure a jury trial until his case was brought before Justice George at the jail delivery session in May 2010. He had no legal representation throughout the PI.

John's unfortunate case was highlighted by Justice Roxane George at the jail delivery session when she publicly stated that John represented what was broken in the system. The Judge ordered that his indictment be presented in June.

I was disturbed at what I read in the newspapers about John's situation and decided to visit him at the Camp Street prison before his trial commenced. He said he was now legally represented for the first time by Mr. Vidyanand Persaud who was asked to intervene in his case and represent him free of charge. Vidyanand had willingly agreed.

I interviewed him for just under an hour. He spoke broken English haltingly and communication was slow and difficult. He confirmed that he picked up some English in prison but that at the time of his arrest he spoke and understood very little English. He further confirmed that he understood nothing that transpired during the course of his PI since he was never provided with an interpreter, a fact which did not escape Justice Ramlall who stated that the State was legally bound to provide one. He also confirmed that he could not have afforded a lawyer and he did not know that there was a possibility he could have been released on bail pending trial. He also confirmed that he missed court on many occasions because the prison authorities failed to transport him to Lethem to attend Court.

Mr. Vidyanand Persaud observed in Court that John's constitutional right to a fair trial within a reasonable time was violated given the length of incarceration awaiting a trial. He noted that John was charged on May 27, 2003 and was committed to stand trial on June 5, 2008 with evidence gathered over that period from a few witnesses.

The judge addressed John in court and agreed with the views expressed by defence counsel. Ramlal also apologized to the freed prisoner for the long time he waited for a trial. This was conveyed to John through his attorney since he had trouble comprehending English.

After his acquittal I took him to the Ministry of Amerindian Affairs where I explained his plight to the Minister. Here he was, suddenly freed after seven years with no money, no clothes, no plan and free in Georgetown for the first time in his life. No friend or relative had visited him in five years. Minister Pauline Sukhai readily agreed to help and arrangements were promptly made for him to stay at the Amerindian hostel pending arrangements for him to travel to Karasabai. During his short stay at the hostel I was able to arrange some cash donations and other contributions in kind to John from well-wishers, the Catholic Church and myself. I also took him to see Fr. Paul Martin, the Catholic priest resident in Karasabai who agreed to help him with his resettling plans. His flight was then booked and he left on the Monday vowing never to return to Georgetown. He called me from Lethem to indicate that he had reached safely.

Unrelatedly, but interestingly, I stumbled across the following statement by the then Prime Minister, Mr. L.F.S. Burnham, mentioning the suffering of Amerindians at the unveiling ceremony in 1977, of the Enmore Martyr's Monument. He observed:

And now, Comrades, we have surveyed a wide field historically and chronologically. We have moved from 1596 to 1976; we have noted what our Amerindian Brothers have done and how they suffered; we have noted what our Black Brothers have done and how they suffered; we have noted what our Indian Brothers have done and how they suffered. Therefore, let us forget Amerindian, Black and Indian; let us say we have noted what the Guyanese people have suffered to reach this state.

DPP Files Motion Challenging Earlier Ruling By Justice George

2010-07-17T12:09:00.004-04:00

Following on from Justice Roxane George's orders (see post below) the DPP has filed a motion in the High Court challenging those orders.

Read more here.

NY Times Editorial

2010-07-17T11:53:00.000-04:00

Fighting Aids on limited budgets

Legal Commentary in Trinidad Guardian

2010-06-12T22:33:00.003-04:00

Dana Seetahal: Status of Special Anti-Crime Unit in Trinidad

Ministry of Justice?

Attorney General Responds

2010-06-01T08:01:00.003-04:00

The Attorney General of Guyana responds to the concerns raised below.

Jail Delivery Highlights Human Rights Violations Of Prisoners Awaiting Trial

2010-06-01T07:48:00.007-04:00

Broken criminal justice system denying prisoners their rights - Justice Roxane George

By Iana Seales | May 28, 2010 in Local News

The criminal justice system is accountable to prisoners awaiting High Court trials, Justice Roxane George said yesterday, and she declared that the time has come to fix what is broken in the system because citizens cannot continue to languish in prison for years. The lack of state resources to comprehensively reform the system is noted, she said, but emphasized that citizens are guaranteed certain fundamental rights under the Constitution, including the right to a fair trial within a reasonable time. She said stakeholders need to work together and “fix the system” because prisoners are waiting too long for trials.

Justice George articulated her frustrations with the system yesterday during jail delivery in the High Court saying that in a democratic society human rights are to be respected. People simply cannot be put away in jail for a considerable period of time without being afforded the right to a hearing, she said.

Prison records released yesterday disclosed that 132 inmates of the Georgetown Prison have been committed to stand trial in the High Court; some were incarcerated since 2003. Of that figure the breakdown lists 98 for murder including seven females; four for attempted murder; four for manslaughter; 21 for carnal knowledge; two for incest; one for armed robbery; one for rape and one for arson.

Prisoner Justin John was admitted into custody on May 27, 2003 after he was charged with murder; he was committed to stand trial in the High Court on June 5, 2008 and is still awaiting trial. John, who hails from South Rupununi, was among 23 prisoners who recently requested an early trial and yesterday he appeared before Justice George to appeal for an early date. The court was told that John, 55, could not speak English at the time of his admission into the prison, but he managed to communicate in English yesterday with the judge saying he now has a limited understanding of the language.

“I ain’t ever get visitors,” he told the judge after she questioned whether relatives visit him in the prison. Justice George said John represents what is broken in the system and she ordered that his indictment be presented in the June sessions of the Demerara Assizes which opens next month. She asked the state counsel present why John’s case was never presented and was informed that a few attempts were made but failed because of the unavailability of witnesses as well as failed attempts to contact others. The judge the concluded that his case must be called at the next session, regardless of what is happening with witnesses.

She said there has been a breakdown between the High Court and the Chambers of the Director of Public Prosecutions (DPP), and the communication which formerly existed needed to be up and running again in the interest of the individuals who are in prison awaiting trials. “Jail delivery is meant to hold the criminal justice system accountable so that prisoners do not fall off the radar,” the judge added.

Trials in order of admissions
Justice George yesterday called on the DPP’s chambers to explore the idea of presenting indictments in the High Court based on when prisoners were admitted into the system, noting that in John’s case his matter would have to be presented because he stands out as the only committed prisoner in the system for seven years who is yet to have a High Court trial.

She said stakeholders need to work together and fix what is wrong with the criminal justice system if the rights of citizens are to be protected.

Senior Superintendent of Prisons, T Small, who was present in the court yesterday, was unable say how many prisoners were in the system facing Preliminary Inquiries (PIs). The judge commented that many PIs are dragging on at the lower court and taking years, and again she referred to John’s case; his PI took five years. She said irregular court hearings in the Rupununi could have been a huge factor in John’s case, but noted that it still took a long time before he was committed to stand trial.

Attorney-at-law Basil Williams, also present in court yesterday, said several of his clients have been victims of the system’s inability to offer citizens a fair trial within a reasonable time. He named Burt Lancaster, admitted in 2006; Nigel Forrester, admitted in 2005; Squince Mc Lennon, admitted in 2004; Kensie Glasgow, admitted in 2005 and Dexter Headley admitted in 2006. Williams argued that the system has been unfair to his clients in addition to others like John, and he said the time has come for the system to work in a fair manner.

Williams hailed the specific orders which Justice George made in relation to several prisoners yesterday saying the judge made a critical and timely ruling with respect to prisoners who are languishing in jail. He said too that the court was unable to have a true picture of what is happening because of the lack of information provided on the number of prisoners in the system who are still facing PIs.

Attorney-at-law Hukumchand was also in court yesterday petitioning for his clients to have early trials. He said they have also been sitting in prison for years waiting for the court to grant them a hearing. He named Peter Ray Kassim admitted in 2005 and Chandrapaul Chatram admitted in 2007.

Justice George also inquired about prisoner Aubrey Crawford who was admitted in 2004 on a carnal knowledge charge. Crawford was committed to stand trial that same year, but his matter is yet to come up for hearing. The state counsel were unable to provide an answer saying they were not briefed on Crawford’s case.

When given the opportunity to speak the 58-year-old Crawford told the court that he has been unable to raise the $100,000 bail which he was granted several years ago. He said he was also unable to afford the services of an attorney. “I don’t have any money and I don’t see my family either,” he told Justice George. The judge then ordered that his indictment also be presented at the next session in June.

Timothy Jonas Elected President Of The Guyana Bar Association

2010-05-30T11:47:00.007-04:00

Stabroek News: Jonas new President of the Bar Association

By Stabroek staff | May 30, 2010 in Local News

The Guyana Bar Association (GBA) has elected a new executive and Attorney-at-Law Timothy Jonas was named president of the association. He replaced former President Teni Housty.

The executive also comprises Attorneys-at-law Mohamed G. Khan and Gregory Gaskin who were elected vice-presidents; Prabha Persaud-Kissoon as secretary; Ronald Burchsmith, who returned unopposed as treasurer, and Chandrawattie Persaud as assistant secretary/treasurer.

A press release from the GBA said that six other attorneys-at-law were elected as members of the Bar Council: Teni Housty, Nigel Niles, Gino Persaud, Mark Waldron, Christopher Ram and Emily Dodson. According to the release, retired judge Jainarine Singh Jnr acted as returning officer during the elections, which were well attended.

Jonas was admitted to the bar in 1996 and is a partner in the law firm of de Caires, Fitzpatrick, and Karran, where he has been associated for the past 12 years. Housty previously held the post of president from 2008 to 2010.

Khan was admitted to the Bar in 1996 and has served in various capacities in the GBA before 2008, while Gaskin was admitted to the Bar in 2006 and previously served during the past two years as secretary, according to the GBA release.

SN Article On Deeds Registry

2010-05-30T11:45:00.003-04:00

Senior Attorney urges reform of Deeds Registry

By Stabroek staff | May 30, 2010 in Local News

- delinking of commercial arm

The current state of the Deeds Registry signals a need for urgent reform, and serious consideration by the relevant authorities for the removal of its commercial arm to a state agency, according to attorney-at-law Leon Rockcliffe.

Rockcliffe, an experienced practitioner who is knowledgeable about the operations of the Registry, pointed to a number of issues in a recent letter to Stabroek News, which he said negatively affected the system.

Rockcliffe said the land titles administration needed serious examination, as the very basic land registers “upon the accuracy of which the nation relies for information” on land titles under the Roman-Dutch ‘transports’ system are in a state of real distress. “They present a marked and continuing deterioration in their condition attributable to clear supervisory negligence on the part of the registrars and senior staff of the conveyancing section of the registry over a decade or more,” he charged.

The attorney said he had raised his concerns with officials at the Ministry of Legal Affairs, which has oversight for the Deeds Registry, but to no avail. In fact, he said letters forwarded to the ministry in February this year went unanswered; no one even acknowledged receipt.

Stabroek News contacted the Registrar of Deeds, Carolyn Paul, who said she was not allowed to speak to the press in the absence of permission from the ministry. Paul did not receive permission and was unable to offer any comments, while calls placed to the ministry were not returned.

However, a source close the registry told this newspaper that Rockcliffe had “brilliantly highlighted” what was wrong at that division of the court. The source said issues of corruption had plagued the registry for years in addition to problems with the pace of the delivery of services as well as the state of its daily operations. According to the source, Rockcliffe essentially captured the issues which needed addressing and which had been ignored for some time.

President of the Guyana Bar Association Teni Housty begin_of_the_skype_highlighting end_of_the_skype_highlighting, in an invited comment, told Stabroek News on Friday that Rockcliffe’s perseverance and determination to implement change was commendable. He said the specifics of Rockcliffe’s concerns raised a more fundamental concern within the legal system and in the country generally, and that was what were the incentives and motivation for action. Specifically, in the case of the registry, Housty questioned why no one was acting.

“Why does it take USAID funding to drive a process, however well intentioned, to modernize the Deeds Registry of Guyana? Why do we need IDB funding to motivate us to improve our various systems?

“We must appreciate that the assistance is welcome, and these do create opportunities for participation and contributing to the process. However, why are we not the drivers of our vehicles, the directors of our own paths?” Housty asked. He said that from time to time people would encounter the blockade of non-responsiveness and non-action, noting that the challenge which this country faced was the extent to which inaction was embedded in the mindset of those with the appropriate power.

“What we need and support is responsive and responsible actions from those with the power to act and influence the process. It is hoped that some action is taken by the appropriate powers to address some of the concerns raised by Mr Rockliffe,” he said.

Rockliffe, in his letter, said the registry proper could no longer tolerate and accommodate commercial transactions within its present physical borders along with the performance of its statutory obligations under the Deeds Registry Act. “The two must go their separate ways,” he contended, saying that here was a compelling argument for the Commercial Registry to be established in some other location and possibly under some other aegis like the Ministry of Trade, to meet the demands of modern-day commerce, “Where it may grow with staff technically trained in the law relating to the several spheres of its clearly commercial business.” The commercial business at present conducted at the Deeds Registry includes intellectual property such as trademarks and designs, patents and bills of sale along with the incorporation of companies and registration of business names, these last two being embraced by the one stop project.

He said other functions included the registration of contracts, notarial and other deeds and powers of attorney, among other things, and said that these were performed satisfactorily. But he said the land titles administration needed deep examination and very urgent repair. Rockcliffe said too that the system also required the maintenance of encumbrance registers for the recording of equally important material such as mortgages and leases and the faithful and accurate annotation of these transactions on the original land titles affected thereby. “These registers have not been maintained since 1982,” he stated, adding that the lawyers for the financial institutions whose mortgages and other business were premised on the accuracy of the land titles presented to them as collateral could not and “should not be happy to have this situation continue.”

Rockcliffe also mentioned parate execution saying that although there were other hindrances that had contributed to its absence for the past 20 years the registry needed to prepare for when they would resume. According to him, the registry is currently not ready to handle them. He also mentioned training for the staff at the registry saying there had been a marked deterioration in the academic and intellectual quality and general knowledge on the part of middle-level clerks there.

Further, he pointed to the absence of a qualified legal practitioner at any level of the registry and also the lack of accommodation for attorneys who may visit in relation to queries on their submitted material.

Letter to SN by Prominent Lawyer

2010-05-30T11:39:00.004-04:00

Land Registry

By Stabroek staff | May 20, 2010 in Letters

Dear Editor,

On February 8, 2010, I caused to be hand-delivered to the offices of the Minister of Legal Affairs, the Permanent Secretary to the said Ministry and the Registrar of Deeds a letter addressed to the said Minister dated February 3, 2010 dealing with aspects of the performance of the department known as the Deeds Registry. It probably reflects the culture of the present day that not one of these public officials saw fit to afford me the courtesy even of an acknowledgment of receipt of that document. They probably figured that the writer would become frustrated by the long wait and forget the matter. If so, they are quite wrong! They clearly have no taste for the niceties of dialogue. Hence it becomes a public issue through the kind courtesies of your good newspaper.

Having spent nearly two decades in clerical and administrative positions in that government department, participated in several IADB funded consultancies since 1994, lectured to staff members and practised privately as an attorney-at-law for the past 19 years, I may just be qualified to make some critical comment with a view to redressing the deterioration and patent deficiencies that abound there.

It is necessary to deal early with some possible deceptions arising from the events of a few months ago. With USAID funding, there was launched a project for the Reform of the Deeds Registry Business Regist-ration and Incorporation Process – a one stop shop which would facilitate a reduced time for that incorporation process along with simultaneous registration at three other governmental agencies, viz GRA, NIS and Go-Invest. That is all well and good but has absolutely no relationship with the essential business with which the Deeds Registry is charged. Indeed it is the probable success of this project with its mainly commercial implications that poses the problem of delusion that the Deeds Registry is on a firm keel.

The commercial business at present conducted at the Deeds Registry includes Intellectual Property such as Trade Marks & Designs, Patents and Bills of Sale along with the incorporation of companies and registration of business names, these last two being embraced by the one stop project. There is, accordingly, compelling argument for the Commercial Registry to be established in some other location and possibly under some other aegis like the Ministry of Trade, to meet the demands of modern-day commerce where it may grow with staff technically trained in the law relating to the several spheres of its clearly commercial business. In short, the Deeds Registry proper can no longer tolerate and accommodate such an operation within its present physical borders along with the performance of its statutory obligations under the Deeds Registry Act. The two must go their separate ways.

It is these obligations that remain under threat and which I propose for serious attention. They are set out at section 7 of the Deeds Registry Act and are essential reading for any assessment of the performance of this department. Section 7(k) sums up the extremely serious charge upon the Registrar: “to keep all registers, including land and mortgage registers requisite for the due performance by him of any of his duties aforesaid and for the establishment of an official system of registration calculated to furnish security of title and an easy reference thereto.”

The other functions, as the name suggests, embrace the registration of contracts, notarial and other deeds, powers of attorney, etc. There appears, from my observation, to be very satisfactory performance of these functions, particularly in relation to the surge of Change of Name Deeds Poll and Powers of Attorney which are an item of growing public demand. It is the land titles administration that calls for deep examination and very urgent repair.

The very basic land registers upon the accuracy of which the nation relies for information on land titles under the Roman-Dutch ‘Transports’ system are in a state of real distress. They present a marked and continuing deterioration in their condition attributable to clear supervisory negligence on the part of the Registrars and senior staff of the conveyancing section of the Registry over a decade or more. In recent years it has been the custom at the end of the secondary school year to employ work-study students, some of whom, operating without proper supervision, have made their understandable contribution to the inaccuracy of recordings in the land registers.

The situation worsens. The act and the system also require the maintenance of encumbrance registers for the recording of equally important material such as mortgages and leases and the faithful and accurate annotation of these transactions on the original land titles affected thereby. These registers have not been maintained since 1982. The lawyers for the financial institutions whose mortgages and other business are premised on the accuracy of the land titles presented to them as collateral could not and should not be happy to have this situation continue.

There is, however, a far more disturbing aspect to be considered, namely, the debilitating affect of an inefficient land-title recording system and the corresponding failure of encumbrance registration upon the process legally termed ‘Parate Execution.’ Now, Parate Execution is a statutory process whereby local government bodies like the Mayor and City Council, town councils and related organs and councils may cause rate-payers’ property to be sold at execution for non-payment of general rate when the ordinary exhortations fail. Well, it so happens that an essential preliminary activity in that process is the certification by the Registrar of Deeds relating initially to the title-ownership of the property and later to the existence of any mortgages or leases thereon.

Since land sold at Parate Execution is sold free of any such mortgages or leases, the Registrar of the Supreme Court, whose Marshal will eventually sell the land at execution, is under a duty to inform the mortgagee (the bank or building society) or the lessee of the existence of such mortgage or lease.
This, Editor, must therefore be regarded by any governmental administration as an extremely serious situation where by the failings of one of its crucial agencies, the Deeds Registry, there is an inherent obstacle to the hallowed and historically effective means of recovery of rates due to its local government bodies.

Although there are other hindrances that have contributed to the absence of Parate Execution sales for the past 20 years, these sales will resume some day and the Registrar must prepare for that event.

In my letter to the Minister of Legal Affairs which I now copy to you as background information, I raise several other issues impacting on the quality of performance of the Deeds Registry. I name only a few:-

* The almost total absence of internal training on the technical aspects of Registry practice.
* A marked deterioration in the academic and intellectual quality and general knowledge on the part of middle-level clerks most of whom have never even read or been provided with a copy of the Deeds Registry Act under which they operate. (Their faithfulness, zeal and dedication are no substitute for basic legal education.)

* The absence of a qualified legal practitioner at any level.
* The total lack of accommodation for attorneys-at-law who may visit in relation to queries on their submitted material. (I acknowledge this past interaction with lawyers as a healthy basis for informational and intellectual growth on the part of the staff – but that was long ago!)

* A similar lack of accommodation for public officials from such important agencies as the Guyana Revenue Authority, Ministries of Works or Agriculture, Guyana Lands and Surveys Commission, the Privatization Unit and Valuations Division of the Ministry of Finance.
* On the spot photocopying facility.

I raise these matters of lack of accommodation as a further argument for the re-location of the Commercial Registry and vacating of space for the expansion of the Deeds Registry both in terms of personnel and recording and registration facilities which are a crucial factor in the efficient performance of this most essential governmental agency.

The foregoing comments do not seek to cover the parlous situation at the New Amsterdam and Suddie Sub-Registries. Enough for today!

By your kind permission I shall shortly address the current predicament attending the country’s Land Registration System.

Yours faithfully,
Leon O Rockcliffe
Attorney-at-Law

Full Court Reprimands DPP For Sub Judice Comments

2010-05-26T09:40:00.005-04:00

The Full Court of the High Court has reprimanded the DPP for sub judice comments and has issued a gag order restraining her from further sub judice comments until the hearing and determination of the matter.

This is the offending material that was sent as a letter to the editor.

UK Election Watch – The Night Before

2010-05-05T18:56:00.004-04:00

It is the night before the elections. Today I travelled out from London to Lancaster to observe polling in this constituency where I will remain until close of poll and witness the count. My team consists of two MPs from Sierra Leone and Malaysia. The atmosphere is tense and I am glued to the telly safely ensconced from the bitter cold in the salubrious seaside town of Morecambe in a room with a view overlooking the bay. The latest polls continue to show a Conservative lead with a tight battle between Labour and the Liberal Democrats for second place.

Wherever we go there is unanimous agreement that this is a historic election. It is the first time in English history that international observers have been allowed to monitor UK elections and we are privileged to be among the first to have set this fortunate precedent. Strange, you would think for an old democracy that has long lectured to developing countries on democracy and good governance but who have never opened their own electoral process to scrutiny.

It is the first time in UK modern political history that we've seen a surge of almost 30% in support for a third party - the Lib Dems. This is the only election in which a great window of opportunity has opened up for debate on electoral reform and the increasing dissatisfaction with the first past the post system. It is also the first election that has introduced postal voting on demand. Any registered voter can request a postal vote without a reason. Prior to this election a voter had to give a reason why they preferred to vote by post.

I spoke to Lord Chidgey a Lib Dem MP from 1994 to 2005. He told me that the most important sector of the voting population is the elderly vote. They are twice as many as the young vote and they are twice as likely to vote.

Yesterday I attended a briefing by the Electoral Commission (EC) as an accredited observer. It is a new body established in 2000. Prior to this there was not a lot of independent regulation of elections. There was some responsibility in the Interior Ministry which has now been taken over by the EC which is independent and accountable to Parliament. They do not manage or have conduct for the elections which sole authority rests with local officials in each constituency whose registration officers and returning officers run the elections and maintain independent electoral registers.

The Commission sets and monitor performance standards for local election officials and reports to Parliament on how well they are met. They register political parties and make sure voters register, understand how to vote and follow the rules on party and election finance. An important characteristic of this statutory body is that it is not a government body but a truly independent one accountable only to Parliament. One Commissioner spoke about how other models of election commissions were examined and the UK opted for an independent commission as opposed to some of the extreme models they examined in which the entire commission is constituted of nominees of political parties.

Some interesting facts I discovered: There are 46.2 million persons registered on electoral registers with an estimated additional number of 8-9% of eligible voters not registered. There is no single national register of voters. Each constituency has its own voters list. Theoretically a person can register in more than one constituency but may only vote in one constituency. However, there is no way of cross checking whether a voter has actually registered and voted in more than one constituency. It may sound strange but according to the Brits it has never really posed a problem since the system is built on trust and it is expected that no one will register twice and vote twice. If it does happen it is rare it can be traced by the police and the person charged with imprisonment being a penalty. Few persons take that risk. So while the potential for fraud is there the actual cases have been minimal.

I spoke to eminent and distinguished Guyanese Professor Clem Seecharan who is the Head of Caribbean Studies at the London Metropolitan University. He offered the following comment:

A lot of young people have been long alienated because they feel that their vote is wasted under first-past-the-post. They are therefore inclined to support the Liberals, who are consistently the big losers under it - an experience likely to be replicated again. Clegg's advocacy of electoral reform - and face - are an asset: he knows how to make the camera work for him. The debates have given him the profile that had eluded him since he was elected leader. The turn out of those between 18 and 22 is crucial. Meanwhile, I believe that many older people, who do not necessarily support Clegg and the Liberals, are inclined to do so because they see the system as rotten to the core. Many wish each vote will count in future, possibly under PR, and now that several MPs are discredited as a result of the expenses scandal, they are inclined to disregard the tired argument that under the present system one does elect one's own MP. They have been pointing to Germany, the biggest economy in Europe and a bastion of political stability, where no party ever gets a majority and therefore compromise is imperative for political survival.

As I close there is a hectic schedule of last minute campaigning and the Guardian is reporting that "the Conservatives appear to be on the brink of regaining power at the end of one of the most tumultuous and tightly fought general election campaigns since the second world war."

UK Election Watch – On The Campaign Trail

2010-05-02T22:32:00.002-04:00

What is absolutely certain on the ground here in London is that this is the most gripping electoral battle in many years. It is a critical election. It has aroused great interest among otherwise apathetic voters. This is reflected in the current political climate wherever I go. One UK citizen of Guyanese heritage who I spoke with remembered the 1997 elections as the last gripping elections and the euphoria that enveloped many following Blair's victory paralleled only by great disappointment at Labour's subsequent stewardship.

With a few days left to the May 6^th showdown there is quite a bit of excitement, anxiety, sharp exchanges (as sharp as the British can be) and all the other emotions that usually accompany closely fought elections. And that is what this is. This is no ordinary election. This is a clash of the titans. Gordon Brown is in the battle of his life to win his first election since inheriting office from Tony Blair. He conceded to the Observer that Labour was going into the elections as the underdog. The Prime Minister is consistently trailing third in the polls and hasn't helped his situation with his recent description of a voter who questioned him on immigration issues as a "bigoted woman" not realising that his microphone was still on. However, the Prime Minister has on his side his effective financial management of Britain during and after the global financial crisis with policies and critical decisions that have undoubtedly steered Britain out of recession. And he constantly reminds the electorate of this with every opportunity. Tony Blair has been called in at the last moment to campaign for Brown in what the Liberal Democrats call a desperate move by Labour.

Third Force

For the first time, a third party, the Liberal Democrats led by the charismatic Nick Clegg has made an impact and is now second in the polls. The nation witnessed a meteoric rise in his popularity following his performance on the first of the BBC three television debates, in itself historic, since it is the first time in British history that its political leaders engaged in the American model of televised debates. Clegg is attractive and inspiring to many young voters. He has consistently presented himself as the face of change, a fresh alternative and a viable third option on a political landscape that has long been dominated by the two major political parties. He has called for a new kind of politics reminiscent of Blair's call in 1997 for a new political culture and a "new Labour." Some persons I have spoken to have registered their disappointment at the track record of Blair's "new Labour" from 1997.

The Guardian Newspaper which traditionally backed Labour has endorsed the Liberal Democrats officially declaring last Friday that "if the Guardian had a vote it would be cast enthusiastically for the Liberal Democrats." However, it is supporting Labour in marginal constituencies.

One sustained topical issue I keep hearing from voters is their dissatisfaction of the electoral system which some have called "archaic." There are strong calls for reform and for this to be the last election under the first-past-the-post system. In fact it was only recently that a permanent elections commission was established. The Liberal Democrats seem to be the only party who has consistently and clearly promised electoral reform. The Guardian has also called for a system of proportional representation that would see a parliament more reflective of a plural and diverse society

It is generally accepted that David Cameron offers a refreshingly different conservative face. Some have said that his current policies are substantially different from those previously embraced by Michael Howard, Thatcher and others. He is recognised as being bold to confront and challenge many of the traditional criticisms of the "Tories" and has made many changes altering traditional Conservative philosophy. However, some of his proposals are controversial such as the scrapping of the Human Rights Act which contain many fundamental rights and freedoms in a country where there is no written constitution. Such similar rights are enshrined in the written constitutions of independent Commonwealth territories. He was recently endorsed by the Times Newspaper which is the first time since 1992 that the Times is backing the Tories. Cameron is currently leading in the polls.

What is not in dispute is the fact that these three robust politicians are all formidable contenders and are presenting a serious choice and challenge to voters many of whom are still undecided at this late stage. The fact that many professionals are still undecided is a healthy sign since they have indicated that they are still open to being persuaded by the political parties based on policy and principle. This afternoon I spoke to three voters who are all professionals with impressive academic qualifications and they are still undecided. They are torn between Labour and the Lib Dems.

The latest polls continue to show the Conservatives in the lead projected to win the most seats but unable to muster the required majority of 326 seats to form a government and avoid a hung parliament. There are 650 seats up for battle in the general elections.

I am a member of the Commonwealth Observer Team comprising members of civil society and parliamentarians from around the world. From Monday we have a packed schedule of briefings, debates, roundtable discussions and information sessions. We will also be travelling out to various constituencies, meeting local MPs and witnessing the elections count.

Plea Bargaining

2010-04-23T15:07:00.003-04:00

Guyana has taken a brave step in implementing plea bargaining legislation. Notable common law jurisdictions such as England, Australia and Canada have demonstrated a persistent reluctance to formally embrace this concept despite the fact that certain aspects of plea bargaining exist informally within those criminal justice systems. India only implemented this law in 2005. The controversial concept of plea bargaining can be supported as it can be easily vilified. In the US for instance it is said that it is a resounding success with over 90% of the criminal convictions being the result of a guilty plea.

In the Guyana context plea bargaining legislation can serve a useful purpose given the over burdened state of the criminal courts, over-populated prisons, the backlog of criminal cases, high rates of acquittals, the torture, degrading and inhuman treatment sometimes of prisoners awaiting trial and the lengthy delays in proceeding to and completing a criminal trial. The reality in Guyana is that we do not have the resources for every case to go to a full trial in a timely manner in keeping with the defendant's constitutional right to a fair hearing with a reasonable time. There is a paucity of judges and magistrates to hear criminal trials full time and complete those trials in a timely manner.

In India the Gujarat High Court observed in State of Gujarat V. Natwar Harchanji Thakor (2005) Cr. L.J. 2957 that:

The very object of the law is to provide easy, cheap and expeditious justice by resolution of disputes, including the trial of criminal cases and considering the present realistic profile of the pendency and delay in disposal in the administration of law and justice, fundamental reforms are inevitable.

Salient features of the Act

What I find particularly interesting about the Guyana Act, and which I am not in agreement with, is the fact that the legislation does not limit or define a category of offences to which plea bargaining is applicable. It would seem therefore that theoretically a plea arrangement can be obtained for many grave offences. From a public policy perspective this may be offensive since one may argue that a defendant should not be able to cop a plea bargain on a grave offence such as human rights abuses. Contrast this with India for example which states that their law only applies to offences where the penalty is 7 years imprisonment and under. Also the law is inapplicable where an offence is committed against a woman or a child below 14 years or where the offence is a socio-economic one.
Procedural Safeguards
Court control over sentence
There is consistent judicial regulation over the entire process with the court being free to reject a plea arrangement if it so desires. The plea agreements that are possible under the act where an accused pleads guilty are:
1. An application to the court to dismiss other charges
2. A recommendation to the Court for a particular sentence
3. An agreement not to oppose a request by the accused for a particular sentence
4. An agreement that a specific sentence is appropriate
In essence what these different scenarios mean is that the court may hear recommendations but retains complete control over sentencing unlike what obtains in other jurisdictions where the prosecution and the defence can agree on a specific sentence for a guilty plea. Thus the element of judicial discretion is retained as far as imposing the sentence goes thus preserving the constitutionality of the provisions. Any provision which excludes the element of judicial discretion would be unconstitutional.

Judicial supervision to ensure that the process is voluntary

The Act provides for the Court to examine the process in open court, or in camera, to ensure the plea arrangement was entirely a voluntary one and that there was no element of coercion or fraudulent misrepresentation of a material fact. It is for the court to be satisfied that the accused knowingly entered in a plea arrangement without coercion or else it can reject a plea arrangement.

Appeal against sentence

The DPP is not entitled to appeal a sentence upon a guilty plea unless the prosecutor was wilfully misled by the accused or the Court in passing sentence was wilfully misled.

Role of the victim

The Act makes provision for the role of the victim. Other jurisdictions have gone further with their laws making specific provision for compensation to the victim as part of a guilty plea arrangement.

Constitutionality of plea bargaining

In the case of Santobello v. New York (1971), the Supreme Court of the United States affirmed the constitutionality of plea bargaining and actually encouraged prosecutors and defence counsel to participate in the practice because of the significant benefits that may be derived from it. In Blackledge v. Allison (1977), the Supreme Court of Canada identified these benefits as including the following:

The defendant avoids extended pretrial incarceration and anxieties and uncertainties of trial; he gains a speedy disposition of his case, the chance to acknowledge his guilt and a prompt start in realizing whatever potential there may be for rehabilitation. Judges and prosecutors conserve vital and scarce resources. The public is protected from the risks imposed by those charged with criminal offenses who are at large on bail while awaiting criminal proceedings.

Criticisms

It shields the inadequacies of the workings of the criminal courts and the shortcomings of the criminal procedural laws
The Act makes it mandatory for the views of victims or a relative of the victim to be taken on board by the prosecutor before concluding plea bargaining as well as for the Court to seek those views in open court or in Chambers before passing sentence. It is my view that increasing the role of victim in the PB process may invite corruption.
The Act does not make it mandatory that if a Court rejects a plea agreement then it should be made confidential since this could prejudice the accused if it is not kept confidential
The fines for improper inducement by a lawyer or a police officer are too low at $25,000. It should be at least $500,000.
The Act provides that legal aid may be granted to an accused. I personally believe the act should have made it mandatory for legal aid to be granted to an indigent defendant so that the defendant could be fully aware and independently advised of the ramifications and consequences of pleading guilty and entering into a plea arrangement.

Constitutional Challenge to Cross Dressing Law

2010-03-19T06:41:00.002-04:00

Litigants and SASOD files constitutional motion challenging ancient cross dressing law.

5500 House Lots To Be Developed

2010-02-23T09:43:00.005-04:00

A friend and I were discussing the achievements and shortcomings recently of the PPP administration. We both emphatically agreed that one of the major achievements of the PPP is definitely in the area of housing. The housing drive is a major success and when I saw this news that 5500 more house lots are to be developed it confirmed my view that the government is serious about housing from a policy and developmental perspective. Housing was and will always be a hallmark of the PPP and this has been evident since it was in power in the 1950's and 60's.

It would be good if the government could demonstrate more commitment to the improvement of the judiciary and the administration of justice. Judges need better salaries, benefits and better conditions of work. Until these conditions are improved judicial office will remain non-attractive to senior lawyers with the capability and skills to be good judges.

I remember being present at a function where in the company of a diplomat and a group of lawyers the question was posed by the former to us whether any of us or anyone we knew harboured judicial ambitions or whether anyone saw the judiciary as a career move or something to aspire to. I was mildly surprised when everyone answered with a resounding negative. I, myself racked my brains to think if I knew any colleagues who were genuinely interested in judicial office as a means of service to country and as a permanent career move. I could think of none.

SN: High Court To Go Digital

2010-02-23T09:38:00.003-04:00

Dr. Ashni Singh: High Court to go digital.

Tax Practice Certificate

2010-02-23T09:32:00.002-04:00

Head of the Guyana Revenue Authority calls for professionals to obtain their tax practice certificate

Freedom Of Expression - Canada's Libel Laws

2010-02-01T22:21:00.006-04:00

NY Times: In a welcome move toward increased freedom of expression, the Supreme Court of Canada has issued two rulings that will give reporters a new legal defense for “responsible communication.”...
...The Supreme Court ruled that the judgment against the newspaper was improper because it had failed to give adequate weight to the value of freedom of expression. The court announced a new defense of “responsible communication on matters of public interest.” Journalists and other speakers can avoid liability, the court ruled, if they can show that the information they communicated — whether it turned out to be true or false — was of public interest and they were diligent in trying to verify it.

Archaic Divorce Laws

2010-01-17T23:28:00.004-04:00

A common frustration in Guyana with our archaic divorce laws is the fact that it is fault based. This means that for a spouse to file divorce proceedings that petitioner must claim and prove a fault element on the other such as adultery, cruelty, desertion or insanity.

I was very surprised to read this article in the New York times which reveals that the State of New York also has an archaic system which is fault based.

New York remains the only state in the union that will not permit marriages to end without one spouse’s alleging fault, such as cruel and inhumane treatment, adultery or abandonment....(click here to continue reading)

Sir Ian Brownlie QC - A Legal Luminary In Public International Law

2010-01-17T23:11:00.005-04:00

Sir Ian Brownlie QC who was internationally respected as a leading lawyer in the specialist field of public international law recently died in a tragic road accident. Every student of international law would have studied from his seminal work titled Principles of Public International Law

Read his obituary published in the UK Guardian on 11th January 2010.

NY Times Op-Ed - A Nation Of Do-It-Yourself Lawyers

2010-01-02T21:14:00.006-04:00

A Nation of Do-It-Yourself Lawyers
By JOHN T. BRODERICK Jr. and RONALD M. GEORGE

Published: January 1, 2010

AMERICA’S courts are built on a system of rules and procedures that assume that almost everyone who comes to court has a lawyer. Unfortunately, the reality is quite different. An increasing number of civil cases go forward without lawyers. Litigants who cannot afford a lawyer, and either do not qualify for legal aid or are unable to have a lawyer assigned to them because of dwindling budgets, are on their own — pro se. What’s more, they’re often on their own in cases involving life-altering situations like divorce, child custody and loss of shelter. (click here for rest of story)

Happy New Year

2010-01-01T23:15:00.004-04:00

Happy new year and best wishes for 2010 and beyond to everyone. To the faithful readers and supporters of this blog especially those who have made useful suggestions I will endeavour to take as many as I can on board this year as I strive to blog more frequently. Since the launching of this blog the feedback has been useful, inspirational and thought provoking. There are some readers who prefer legal news, updates and commentary. There are others who prefer political commentary . Then there are the few who prefer blunt hard hitting critical analyses. That lot are the ones who prefer a daily barrage of criticisms against the government, the opposition, civil society, the judiciary, the administration of justice and personalities. But this blog was never intended to satiate those desires which arguably are probably being satisfied by Freddie Kissoon anyway.

It is difficult to please everyone. I have taken all comments and suggestions into consideration and will improve the blog content as best as I can in a responsible, professional, unbiased and of course lawful manner. There are also times when one has to take the moral high road and an ethical stance on issues.

It is always a challenge to find the time to consistently write or flag an important legal or socio-political issue since life is a constant balancing act between home and family; a busy private practice and the growing list of social justice, human rights, charitable work and other pro bono commitments.

To my fellow Guyanese who have persevered over the years, believed in Guyana and are not going anywhere I wish you all the best in health, wealth and prosperity. To those of you who have decided to migrate best of luck for the future. I am not going anywhere. Guyana is home and always will be. For those of us who have no greener pastures to turn to or who have decidedly made a conscious decision to stay and build a life here despite the lucrative options in the Caribbean and beyond we can only hope that our leaders recognise these sacrifices and reward them with responsible and innovative leadership that will improve the quality of lives, restore hope and see economic prosperity. We must also play our own individual part in national building.

To our leaders in government, opposition, civil society, private sector, religious and community I extend best wishes for peace and progress and I trust you will all find common ground together with the inspiration to lead Guyana proudly, diligently and fearlessly. The time for reconciliatory politics is at hand. We must all work harmoniously on a path of nation building for the peace and prosperity of our dear country.

Dr. Bertie Ramcharran: Public Interest Litigation

2009-11-12T09:41:00.005-04:00

An interesting article on public interest litigation by Dr. Bertie Ramcharran, a former UN High Commissioner for Human Rights.

Here's an earlier article featured in the Stabroek News on human rights in Guyana and here's another on the case for an institution on social dialogue in Guyana.

Recent Amendment of Extradition Law

2009-11-11T23:09:00.003-04:00

Parliament recently passed an amendment to the Fugitive Offenders Act aimed at remedying a deficiency in the Principal Act.

Vic Puran, a popular lawyer at the criminal bar is of the opinion that the amendment was unnecessary. He claims that the proper procedure would have been to amend the Treaty between Guyana and the USA.

RESOLUTION: Guyana Bar Association

2009-11-05T16:26:00.002-04:00

GUYANA BAR ASSOCIATION

RESOLUTION OF THE GUYANA BAR ASSOCIATION
CONDEMNING THE USE OF TORTURE BY THE GUYANA POLICE FORCE
ON A CHILD ON OR BETWEEN 28-31 OCTOBER 2009

WHEREAS the Guyana Bar Association is an institution of Attorneys-at-Law committed inter alia to preserving and promoting the rule of law and to defending and protecting the human rights of citizens enshrined in the Constitution and domestic law as well as those universally recognised in international law; and

WHEREAS on an issue of national importance and human rights violation there is evidence beyond reasonable doubt that a fourteen year old child was tortured while in the custody of the police at the Leonora Police Station, West Bank Demerara on or between 28-31 October, 2009; and

CONSIDERING the inalienable rights and dignity of the human person; and

HAVING REGARD to the definition of torture as “ any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity” as contained in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) signed by Guyana as a State Party on 25 January 1988 and ratified on 19 May 1988; and

HAVING REGARD to article 141(1) of the Constitution, article 5 of the Universal Declaration of Human Rights and article 7 of the International Covenant on Civil and Political Rights, all of which provide that no one shall be subjected to torture or to cruel, inhuman or degrading treatment; and

HAVING REGARD to the definition of a child as a human being below the age of eighteen as contained in the Convention of the Rights of the Child signed by Guyana as a State Party on 30 September 1990 and ratified on 14 January 1991;

BE IT RESOLVED BY THE MEMBERS OF THE GUYANA BAR ASSOCIATION THAT THEY:
(a) Condemn absolutely the action of the Guyana Police Force where a child was tortured while in Police Custody at the Leonora Police Station, West Bank Demerara between Wednesday, 28th October and Friday, 31st October 2009 in breach of his fundamental right enshrined under Article 141(1) of the Constitution of Guyana,

(b) Condemn unequivocally the action of the Guyana Police Force in denying to the detained child and other detained persons access to the services of an Attorney-at-Law and to hold communication with such Attorney-at-Law in violation of their fundamental right enshrined under article 139(3) of the Constitution of Guyana,

(c) Condemn in absolute terms the clear violation of the human rights of the child and other detained persons during the period of their detention by the Guyana Police Force in breach of articles 39, 40, and 154A of the Constitution of Guyana which are also universally recognised human rights protected under international law

(d) Call on His Excellency the President of Guyana, Bharat Jadgeo, to appoint a Commission of Enquiry with Terms of Reference that include:

A full scale independent investigation into the abuses at the Leonora Police Station West Demerara during the above mentioned period;
An assessment of the systemic causes of the disregard for the Rule of Law, in particular the Constitution of Guyana and the Judges Rules, which lead to abuses by the Guyana Police Force and to the extent they interact with persons in Guyana, the other disciplined services including the Guyana Prison Service and the Guyana Defence Force; and
Recommendations of effective mechanisms to ensure the Rule of Law is respected specifically by the Guyana Police Force, and generally by the organs of the State.

(e) Urge all citizens of conscience to set aside political concerns, historic grievances and ethnic differences and join in the demand for reform in the conduct of the Guyana Police Force, the Guyana Prison Service and the Guyana Defence Force towards the people of Guyana'

(f) Recommend the creation of a mechanism for immediate redress and civilian or external oversight where the right of detained persons to consult with their Attorney-at-law has been hindered.

RESOLVED THIS 4TH DAY OF NOVEMBER AT AN EXTRAORDINARY MEETING

STATEMENT: Amnesty International

2009-11-04T22:02:00.002-04:00

Statement by Amnesty International on recent issue of torture.

Is Race A Reason For Outrage Against Torture Scandal?

2009-11-04T01:30:00.006-04:00

In relation to this post in which I introduced the lawyers statement by stating how shocked and horrified I was, an interesting debate arose on Facebook reproduced below.

Ronald Burch-Smith: Is it shocking cause it's a young Indian? The state has sanctioned this and worse. Why is it shocking?

Julia Johnson: 101% in agreement.

Demerara Waves: While one may want to construe these latest events as shocking; the last thing that Guyanese should ever want is the further entrenchment of racially-motivated division over this matter to the detriment of the larger cause.

If we erroneously accept that race is the reason for shock; then the Indians among us must be condemnend squarely for saying nothing about the barbaric killing of the gold-jeweler's employee by Guyanese Coast Guardsmen.

In fact, this should be a turning-point in seizing the moment of broadening and strengthening the front on this issue and cease harping back on what should or should not have been. ... Read more

Guyana is undergoing a cycle of events much like the 1970s under the PNC. The outrage against the Burnham/PNC era did not start overnight but with a cumulative effect of the labour-related and political atrocities that had been committed against the Blacks in the bauxite industry and public sector and the East Indians in the sugar belt. Then came the House of Israel thuggery (Fr Bernard Darke's killing), restriction of newsprint, food-bans and restrictions, beating up of anti-government activists by official officially-blessed state actors, etc. that had welded the outrage across race and class lines, notwithstanding the pre and post independence periods of racial tension aming Blacks and Indians.

In essence, the outrage against the Burnham PNC by sections of the society did not begin overnight. People at the then time had to be motivated and educated over a period of time. The Guyanese collective across all lines had to feel the pain themselves and for each other before it became manifest that the then rulers of the day could no longer be tolerated. UNFORTUNATELY THAT CYCLE CONTINUES AND SO IS THE STRUGGLE FOR PEOPLES' POWER! One day, born out of post-colonial experiences will yield a model of governance that is truly indigenous to Guyanese.

The last thing that anyone wants in the current scheme of things is the fracturing of a potential unity-platform on the basis of "we and dem". Forward ever to racial and working class unity among all classes and strata.

The recent position taken by the group of lawyers must be used as the rocket rather than the anchor rather than a weapon against forging the so necessary unity between proletariat and petty bourgeoisie.

It is only through such unity, rather than harping on what should have been done or has not been done on the basis of race, that the apparent paralysis that has inflicted the political opposition, civil society, private sector and the religious community will be healed, galvanised and mobilized.

Gino Peter Persaud: @ Ronald...it was shocking to me because the barbaric act was perpetrated on " a fourteen year old child". Needless to say the act itself was shocking.Did you specifically see "a young Indian"? I didn't, I saw a citizen of Guyana and in fact I originally thought the person was an Amerindian, not that it mattered.

Yesterday morning I loaded the KN online and when I saw that image anger began to set it. By the time I skimmed the article Mark Waldron rang ( I must thank him) to ask me to come down to the gathering of lawyers and to include my name in the statement. Without further thought I immediately agreed because the human rights violation was so egregious. I did not see race as a factor the way others did.

The irony and outrage was even greater for me because the day before I had returned from Trinidad from a human rights meeting which further inspired me to continue the little pro bono human rights work that I do that benefits citizens of all races in Guyana.

That act, or any other similar form of torture has no place in a civilised society and whenever it occurs we as lawyers should rally the way we did yesterday. We have stayed silent for far too long.

Paul Mc Adam: I totally agree with you Gino, keep up the good work, and I'm ready to assist in anyway possible.

Imran Khan: Gents,

I wish to precede my contribution with two comments:

1. I know Gino well enough to know that it would never occur to me that Gino would think of this or any case as being shocking on the basis of race/ethnicity. In fact I had previously read his intro para on his blog and instantly recognized that his use of “shocking” was as it relates to the age of one of the victims... Read more

2. I fully support the statement by the 25 lawyers (hereinafter referred to as “The 25”) and the unprecedented level of unity and bipartisanship in issuing the statement.

The issue of the unparalleled levels of outrage now being seen has been linked to the race of the victims and questions as asked by Ronald are all over Facebook. I have been asked these questions in online conversations, Twitter and I have heard persons discussing this in conversations on the issue.

Unfortunately because of the severe impact that race and ethnicity have had in our country’s pre and post independence history the question of race/ethnicity is now more or less an obvious one.

Race/ethnicity pervades life in Guyana.

I speak from extensive personal experience. My fiancé, as you know, is of a different ethnicity to me and we have experienced it over and over to the point where we expect it to happen now and have devised ways and mechanisms to avoid and even capitalize on it. I should explain that by “capitalize on it” I mean that if we, as a couple, have to deal with a person of X or Y ethnicity on an issue, from bitter experience, we see greater benefit, whether it be in expeditious service or otherwise, that one or the other takes the forefront. We have proven it to be a rather successful formula.

Many view the prominence of race/ethnicity in Guyana as most regrettable and particularly sad. So it may be but it is also the reality with which we must contend. However I believe that with our generation and the youngsters coming up this is waning and that is a sign for the better.

On Neil Mark’s wall the race question as it pertains to this case was raised and Ajay Baksh was vehement in condemning it. I disagreed with Ajay then. I believe in this issue race is integral to this case.

There are certain facts which we cannot ignore:

1. In recent times we’ve had numerous Afro-Guyanese men of all ages (but no minors as far as I am aware) who have been tortured allegedly by the Joint Services. At least six of these cases were widely publicised particularly by Prime News, Capitol News and Kaieteur News. Paul McAdam recalled some of the names on his wall – Patrick Sumner, Victor Jones, Alvin Wilson, Michael Dunn and Sharth Robertson. I will add the case of David ‘Biscuit’ Leander whose alleged torture while in police custody created a letter writing frenzy among members of the judiciary and the wider legal profession.

2. In none of the cases mentioned in 1 above – all of which the victims were/are Afro-Guyanese –did we see the level of widespread condemnation now evident including from “The 25”.

3. There was another case of an Amerindian being allegedly tortured by the police who allegedly placed him in an ant nest in Wakenaam. Again the case was reported by KN but there was no widespread condemnation to the levels we now see.

4. We now have two Indo-Guyanese victims and there is an unprecedented level of outrage, condemnation and call to action, curiously, from all sectors of society.

The deduction has been made by many and it is a natural deduction in the society in which we live based on polarized/tribal/ethnic politics which thrives on it and which is covertly but deliberately fuelled by political elements.
In speaking to more and more folks on the issue it would appear as though the outrage felt by “The 25” and the wider society is based more on one of the victims being a minor rather than considerations of race.

There is however, to my mind, a latent racial element at play here.

Let us remember that both of these suspects were taken into custody as part of an investigation into a murder and for all intents and purposes they could be guilty though the presumption of innocence until proven guilty must apply. Similarly, so too were Leander and the others.... Read more

From my own observations it seemed as though people were not moved to condemn as widely as is the case now because Leander had already been somewhat tried and convicted in the media. He fit the description of what people seem to have come to accept criminals to be in Guyana.

This again is regrettable, offensive and sad but it is a certain reality with which we must contend. It SHOULD not be the case, but it IS THE CASE.

Many in society do not want to accept it to be the case but we cannot wish it away, ignore it, pretend it is not the case or take the high road, turn our noses and chins upwards and try to obliterate it from our minds. It simply IS however we perceive it to be.

At the risk of being thought of as arrogant, while Gino, Ronald and some of us are unquestionably above and beyond seeing issues purely or largely on the basis of race/ethnicity, that, unfortunately, in my humble estimation, is not yet true for the wider society.

Again my observations of this most recent case is as if people have already determined that these two (de Santos’ client and the 14 year old) are innocent when in fact they could very well be guilty! From the comments quoted in the press, the reports themselves, the expressed outrage here on FB and elsewhere you would think that people have already – at least in their minds – decided that de Santos’ client and the 14 year old could not have murdered the man.

To state the case as mildly as I could, this is patently disingenuous even if whatever confessions were obtained through torture can no longer be admissible in court.

I would like to conclude by stating that I know some of "The 25" and I am certain that their motivation for affixing their signature to the statement could not be race/ethnicity. And further I say that I would not be surprised if none of the "The 25" was motivated by the race/ethnicity of the victims. We live, though, in such an unfortunate society, still deeply stained and ruined by devastating choices of politicians of the past and which continue to gain prominence in the politics of many contemporary politicians at the peril of the psyche of the masses and the development of the nation.

STATEMENT: Guyana Bar Association

2009-11-03T21:42:00.002-04:00

31 October 2009

GUYANA BAR ASSOCIATION

PRESS RELEASE

RE: DETENTION AND INJURIES TO TEEN

The gruesome picture of the injured body of a teen on the issue of the Kaieteur News of the 31st October, 2009, serves as a gruesome reminder of the abyss into which our country has sunk and continues to be pulled into by those bent on the demise of our dear land. The ensuring report, chronicles a clear disregard for the fundamental human and constitutional rights of the young man must be seriously and unequivocally condemned. No person should be subjected to any violation of human rights. In this case the teen’s right not to be subjected to cruel and inhuman treatment; not to be unjustifiably denied his liberty and the security of his person; and not to be denied denial of access to justice in the form of his Attorney-at-Law appear to all have been violated.

The Guyana Bar Association without reservation strongly condemns the actions which lead to the extended detention and injuries to the teen. The Bar Association calls for a full investigation, prosecutions and if found guilty punishment of the actors involved.

The Bar Association reaffirms our condemnation of any use of torture or other cruel, inhuman or degrading treatment or punishment upon persons within the custody or under the physical control of any organ of the state or at all.

The Bar Association urges the State and all individuals to comply fully with the provisions of the Constitution and Laws of Guyana. Let us not sit quietly by while those who have lived their lives perpetrate acts which will lead to destruction of the foundations, fabric and future of our society.

STATEMENT: RC Justice & Peace Commission

2009-11-03T10:26:00.005-04:00

PRESS RELEASE

The Justice and Peace Commission of the Roman Catholic Diocese of Georgetown is deeply shocked and outraged at the recent disclosure of severe and barbaric cruelty meted out to citizens of our country including a child. Such savage acts undoubtedly fall squarely within the internationally recognised definition of "torture" and have no place in a modern civilised society. We unreservedly condemn these acts of torture.

The horrifying image in a daily newspaper that greeted us on Saturday morning no doubt shattered the tranquillity of our lives as Guyanese from all walks of life sought to express anger and shock through different fora and through varying media.

We recall the teaching of Jesus in Matthew 25, 40 :" Amen, I tell you, whatever you did to one of these brothers or sisters of mine, even the least of them, you did it to me". As a nation we are all deeply saddened and pained at these brutal acts reminiscent of mediaeval times. These cruel and inhumane acts of torture affect each and every individual and strike at the very heart of our nation's psyche. We are all involved.

The JPC moved by its Christian call to witness to truth, love, and justice as fundamental values that serves the common good, calls on the Guyana Police Force and the Government of Guyana to act swiftly by taking such steps as are necessary to hold those responsible for such atrocities and bring them to account. Every step must be taken to ensure such acts do not re-occur and the victims and their families should be compensated for their suffering.

There is no substitute for good policing. There is no place for torture in any civilised country with a functioning democracy. While Guyanese should support the Police in their fight against crime the Police are legally bound to act within the ambit of the law without trampling on the constitutional rights of citizens. They must live up to their motto of "service and protection" and work assiduously in regaining the confidence of the people. We are heartened by the show of solidarity, a Christian virtue, which has been displayed by so many individuals and groups, and we pray that we may work together to prevent such abominations taking place around us in the future.

The trauma and wounds of the victims of torture have lasting and sometimes permanent effects. Physical harm aside the victims remain deeply scarred emotionally and psychologically as such wounds are deeply imbedded. The JPC extends its deepest regrets, support, encouragement and prayers in these dark times to the victims and their families.

The JPC calls on civil society, the private sector, the legal fraternity, other religious denominations and all Guyanese to unequivocally condemn these dastardly acts and serious breaches of the fundamental rights and freedoms of citizens as enshrined in the Constitution of Guyana and recognised in international law.

JUSTICE AND PEACE COMMISSION

2^ndNovember, 2009

Human Rights Violation

2009-10-31T23:03:00.008-04:00

The Kaieteur News today eclipsed the Stabroek News by breaking the outrageous and horrifying news of a shocking human rights violation at the hands of the Police. Reports are that a fourteen year old child in the custody of the police was severely tortured and brutalised by police officers. The striking photograph speaks volumes.

A spontaneous gathering of approximately twenty-five Attorneys-at-Law rallied together this morning at the Chambers of eminent Senior Counsel and former Attorney-General Bernard de Santos MP to register their outrage at this latest atrocity.

Below is the statement of that gathering which incidentally was not a Guyana Bar Association initiative.

Public Statement by Attorneys-at-Law

31st October 2009

"No person shall be subject to torture or to inhuman or degrading punishment or other treatment."

Article 141 of the Constitution of the Cooperative Republic of Guyana.

"Any person who is arrested or detailed shall be informed as soon as reasonably practicable .. ..of the reasons for his arrest or detention and shall be permitted, at his own expense, to retain and instruct without delay a legal adviser of his own choice…"

Article 139 of the Constitution of the Cooperative Republic of Guyana

"Every person, as contemplated by the respective international treaties set out in the Fourth Schedule to which Guyana has acceded is entitled to the human rights enshrined in the said international treaties and such rights shall be respected and upheld by the executive, legislature, judiciary and all organs and agencies of the Government, and where applicable to them all natural and legal persons and shall be enforceable in the manner herein prescribed."

Fourth Schedule includes Convention of the Rights of the Child

Article 154 A of the Constitution of the Cooperative Republic of Guyana.

The (Guyana Police) Force shall be employed in the prevention and detection of crime, …. and the due enforcement of all laws and regulations with which it is directly charged …" Police Act Chapter 16:01 of the Laws of Guyana.

The events surrounding the arrest, detention and subsequent torture of a fourteen year old minor and at least one other suspect while in the custody of the Guyana Police Force at the Leonora Police Station are as chilling as they are abhorrent.

The subsequent refusal by the Guyana Police Force to permit another brutalized detainee access to a legal advisor of his own choice, particularly eminent Senior Counsel, for a period of four days is a flagrant violation of the guaranteed protected fundamental rights of the citizen, as set out in the Constitution of the Republic of Guyana by those whose primary duty is to uphold the rights enshrined in the Constitution.

The restriction and prevention by the Guyana Police of access by the media and other members of the public to a Magistrate's Court while victims of police brutality where present in the Court are ominous signs of a cover up and suppression of the publication of criminal activity by law enforcement officers.

We the undersigned wish to condemn in the strongest possible terms the torture of a minor and for a matter of fact any other person while in custody by members of the Guyana Police Force.

We wish to record our unreserved condemnation of the Guyana Police Force of their refusal to permit the minor access to a legal advisor of his choice after his detention by the Guyana Police Force.

The restriction of access by the media to a public court by members of the Guyana Police Force where evidence of their acts of torture and violence is unashamed attempt to suppress the dissemination of information to the public of criminal activity by members of the Guyana Police Force who are charged with the responsibility of protecting and serving the public. This enjoys our unequivocal condemnation.

We condemn crime in all forms and offer our sympathies to the victims of all crimes.

We make the following immediate demands:

1. The immediate institution of criminal charges against those responsible for the torture of the minor at the Lenora Police Station between the 27th and 30th October 2009.

2. The establishment of an independent public Commission of Inquiry into the following:

(a) Operational and structural procedures of the Guyana Police Force which led to the torture of a minor while in police custody.

(b) Operation and structural procedures which permitted these events to proceed undetected and unsanctioned.

3. The immediate suspension of the Officer in charge of the investigation and the officer in charge of the station at which the minor was tortured during the conduct of the investigation into the events.

4. The immediate provision of immediate medical and psychological treatment to the victim of these horrific events.

1. Bernard De Santos S.C.
2. C.A. Nigel Hughes.
3. Vic Puran
4. Khemraj Ramjattan
5. Stephen Fraser.
6. Mark Waldron.
7. Glenn Hanoman.
8. Pamela De Santos.
9. Roger Yearwood.
10. Ronald Burch-Smith
11. Gregory Gaskin.
12. Anil Nandlall.
13. Gino Persaud
14. Joseph Harmon
15. Robin Hunte.
16. Kenita Cumberbatch.
17. Deborah Kumar.
18. Raphael Trotman.
19. Peter Hugh.
20. Satyesh Kissoon.
21. Rexford Jackson.
22. Moen Mc Doom. Jnr.
23. Mishka Puran.
24. Manoj Narayan.
25. Tanya Warren.

Belize Judiciary Under Attack?

2009-10-27T06:58:00.002-04:00

Judging from this alarming article emanating from a sister Caricom country it would certainly seem that things are not so bad in Guyana as some would have us believe in the area of the functioning of the Judiciary and its relations with the Executive.

I have tremendous respect for the brilliant Chief Justice of Belize, the Honourable Abdulai Conteh who is a foreigner brought in from Sierra Leone. His written judgments are lucid, erudite and brave. He's not hesitant to chart new ground and is seen by some as a liberal judge with a tenacious appetite for research. All of his written judgements are impressive.

In fact the Court of Appeal of Belize has earned an excellent reputation for itself over the years as the Belizeans have shown that they're not afraid of bringing in foreign judges to strengthen its court. Other foreign judges include Queens Counsel Dennis Morrison of Jamaica and Elliot Mottley from Barbados who's also a Queens Counsel. Their High Court was recently boosted with Guyanese Oswald Legall, a former High Court Judge in Guyana.

Some time ago I heard talk in Guyana to bring in retired English and Australian Judges to work on the backlog of cases. I never heard anything more about that plan.

Our Judiciary in Guyana remains woefully understaffed in terms of quantity. The existing complement and current small crop of judges are inadequate to deal with the the following:

high rate of litigation. Guyanese are known to be very litigious. Many litigants refuse to genuinely give mediation a chance which is not compulsory. They want to have their day in court
the backlog of cases especially those filed as generally indorsed writs (ten day writ) which are languishing having been put down normal course;
a large criminal docket. Many persons are awaiting trial at the criminal assizes;
Bail Court
Chamber Court
Commercial Court
All of the responsibilities above are further required in Essequibo (currently one Judge there) and Berbice (currently two Judges there)

Too little judges to carry that workload outlined above. Isn't that quite a Herculean task?

Trinidad Judge Sends Affidavit to Police

2009-09-29T06:45:00.003-04:00

A Trinidad Judge directs that a controversial Affidavit sworn to by coup leader Abu Bakr be sent to the Commissioner of Police and the DPP.

In the controversial Affidavit, Abu Bakr claims that he had an agreement with Manning during the 2002 elections.

I've highlighted this article because it is the first time I have come across such a situation where a Judge on his own motion sends a controversial affidavit to the police for investigation and to the DPP presumably for consideration as to whether there were offences committed against the criminal law.

First ROC Commissioner To Speak On Infamous "Kwame" Recording

2009-09-27T15:56:00.003-04:00

Vidyaratha Kissoon, a prominent social justice advocate and a Commissioner on the Rights of the Child (ROC) Commission - a constitutional body - writes publicly on his personal thoughts surrounding the recent controversial allegations of sexual misconduct involving a minor that have ensnared the increasingly unpopular Kwame McKoy who works at the Office of the President.

He is the first ROC Commissioner to publicly express a view.

TOPICAL LEGAL ISSUES: Local Newspaper Debate

2009-09-26T09:59:00.005-04:00

An interesting exchange recently arose in the local newspapers on the admissibility of an oral statement by a magistrate presiding over a preliminary inquiry (PI) as opposed to a summary trial proper or a High Court trial before a judge and a jury. In this case the oral statement was purportedly a confession.

My only regret is that the primary exchange is not between the creme de la creme of the criminal bar but rather between two aspirants for higher office who constantly seek attention in the media and who love to write sycophantic letters to the press.

The first letter was written by a former Chief Magistrate who has written quite a number of elementary letters to the press, one of the more memorable ones being that President Jagdeo should donate his frequent flyer miles to children who have to go abroad for medical attention. I don't know why he doesn't donate all his frequent flyer miles accumulated on his frequent Olympic Association and other official sports related travel to a similar cause. He tends to write on the mundane, the elementary and the ordinary. Some that I have seen are quite obsequious and were seen by me to be fawning to at least two magistrates and a former Chief Justice. He has considerable experience at the criminal bar at the summary level.

The second letter was written by another aspirant who Is equally obstreperous and has been seeking high political office for some time now starting with the position of Attorney General and Minister of Legal Affair. He has less experience at the criminal bar than the former Chief Magistrate.

The reason given for the first letter supporting the learned magistrate's decision was this statement issued by the PPP condemning the magistrate's ruling as an extraordinary departure from the norm. The PPP's statement said it had been advised by legal experts that “the issue of admissibility of evidence is to be determined at the trial and not at the preliminary inquiry”.

The raison d'etre for a letter in reply to Juman Yassin is self-evident. In this case Nandall's letter cannot be seen to be objective since he has to defend the PPP's statement which he himself had a major hand in. One senior lawyer said that he was thus caught in the unfortunate situation of having to defend his own statement.

Juman-Yassin then offered a reply while Stabroek News carried an independent article in which they sought and obtained the opinions of two eminent members of the criminal bar: Former Attorney General and Senior Counsel Mr. Bernard Dos Santos and Mr. Nigel Clarence Hughes.

A retired Judge joined in the fray and this was a further response.

The debate continued with this letter from Juman-Yassin

More to come later with some additional letters to the press.

Ralph Ramkarran on Term Limits

2009-09-25T13:11:00.003-04:00

Eminent Senior Counsel and Statesman Ralph Ramkarran writing on Term Limits:

...Vishnu Bisram, the well known and reputable New York pollster, recently published a poll, reflecting what I believe to be the true state of affairs, namely, that President Jagdeo is the most popular politician in Guyana and if he runs for a third term he will win hands down. The outstanding economic and social progress in Guyana under President Jagdeo’s leadership, amidst great challenges, and a number of initiatives in the world financial architecture and climate change have ensured Jagdeo’s stature as a leading statesman. The poll confirms this.

Continue reading here

UK Attorney-General Fined

2009-09-24T21:23:00.003-04:00

The British Attorney-General has been fined five thousand pounds sterling for employing an illegal immigrant.

Read story here.

Saturday Humour

2009-09-20T16:45:00.002-04:00

So I was having a beer with some friends yesterday and we were discussing the garbage pile-up in the city and the discomfort it was causing us. One of the chaps remarked that in addition to the low carbon strategy there should be a low garbage strategy or better yet a NO Garbage Strategy.

Hilarious stuff!

Obama On Education

2009-09-20T08:22:00.001-04:00

President Obama's education speech to schoolchildren

Conversation Tree

2009-09-20T07:43:00.003-04:00

Eminent local Senior Counsel and Speaker of the National Assembly Mr. Ralph Ramkarran has launched a blog. You can read his interesting articles at www.conversationtree.gy

Mr. Ralph Ramkarran is a formidable contender in the presidential candidate race of the ruling People's Progressive Party and has been since 1997.

OPINION: Gail Texeira On Assenting To Bills

2009-09-06T00:47:00.003-04:00

Presidential Adviser Gail Texeira on assenting to Bills by the President.

Her letter to the press was a response to this article.

Here's an older editorial on the issue.

OPINION: Bryn Pollard On Assenting To Bills Passed In Parliament

2009-09-06T00:40:00.003-04:00

Bryn Pollard on assenting to Bills passed in Parliament

OPINION: Dr. Bulkan On The Non-Assenting To Bills

2009-09-06T00:35:00.001-04:00

Another legal opinion by Dr. Bulkan on the non-assenting to Bills passed in Parliament.

OPINION: Delay of Presidential Assent To Bills

2009-09-06T00:29:00.002-04:00

An interesting legal analysis on the delays in assenting to Bills passed in Parliament.

OPINION: Minister Rohee Responds To Dr. Bulkan

2009-09-06T00:18:00.002-04:00

Minister of Home Affairs Clement Rohee responds to Dr. Arif Bulkan's article on polygraph testing below.

OPINION: Polygraph Testing

2009-08-31T23:02:00.001-04:00

Dr. Arif Bulkan on the use of polygraph testing in Guyana.

Leadership Succession In The PPP after 1997

2009-08-16T22:43:00.006-04:00

Ten to twelve years on and after the death of Janet Jagan we are getting interesting snippets on the leadership succession in the PPP after the death of President Cheddi Jagan. Following this article, we saw Clement Rohee writing a letter to the press pointing out that Janet Jagan put forward five names to succeed her which excluded Nagamootoo. He also attempted to establish that that the party leadership was not split between Moses and Ralph Ramkarran. After an editorial note pointing out that the leadership battle between Moses and Ramkarran occurred after the death of President Cheddi and not after President Janet Jagan decided to step down, Mr Rohee then wrote a subsequent letter pointing out certain inaccuracies in his first letter.

Moses in reply sets out his position on the issue.

So Mr. Rohee frets of SN reporting on half a tale and telling tales out of school while Moses has taken the view that the better half of the tale was left out. A commentator on Stabroek News website speaks of fairy tales and my own position is that dead women tell no tales with all of this being unfortunately raised after the death of Janet Jagan.

If you ask me we're still getting a portion of the tale or as Guyanese say "a p'otion." Or, as dem boys seh: tek half lef half.

Ten Years In Office

2009-08-16T22:40:00.001-04:00

SN article on ten years of President Jagdeo.

Attorney-at-Law charged with obstructing justice

2009-08-13T06:42:00.003-04:00

Stabroek News - Berbice lawyer, fish vendor charged with conspiracy to obstruct justice

Berbice defence attorney Mursulene Bacchus was jointly charged yesterday with fish vendor Chandra Lakha Ramdass with conspiracy to obstruct the course of justice.

Bacchus appeared before Magistrate Krishndat Persaud at the Number 51 Court along with Ramdass and they were not required to plead to the indictable charge.

The 67-year-old attorney of Lot 90 Sheet Anchor, East Canje, was represented by Senior Counsel Marcel Crawford and another attorney Perry Gossai, while Ramdass, 59, of lot 183 Hampshire Village, Coren-tyne, was represented by attorney Adrian Anamayah.

In a bail application, attorneys for Bacchus requested that their client be sent on his own recognizance as he is a well known person. Police Sergeant Michael Grant, prosecuting, did not object to the granting of bail but requested that it be in a substantial sum as the offence is a serious one.

The charge against the duo stemmed from an allegation that the defendants induced Annette Samaroo, the spouse of a murder victim, to give contradictory evidence at the Preliminary Inquiry.

According to reports during the Preliminary Inquiry into the murder of Gary Simon, in which Abousalm Azimulla, Gansnam Jagassar and Devendra Harrichand were charged for the offence of murder at the Albion Magistrate Court, Samaroo’s testimony on October 25, 2005 was inconsistent with her statement which was given to the Police Detective Sergeant Mc Cammon on December 19, 2004 and as a result she was deemed a hostile witness by the lower court. Meanwhile the case involving Azimulla, Jagassar and Harrichand is listed for trial during the current session of the Berbice Assizes.

Eyewitness Report

2009-06-23T06:21:00.005-04:00

On the 17th of June 2009 I was at the Providence Magistrate's Court prosecuting a smuggling case on behalf of the Customs - Guyana Revenue Authority. I completed the morning session and left around 11:30 to head back to office. I was horrified to see what appeared to be the lifeless body of a woman lying in the middle of the East Bank Public Highway. I felt sick and was glad I didn't witness the accident. A lone policeman was on the scene on a cell phone. I pulled in the corner and waited a bit to see the outcome, if any. There was no one attending to the body nor was there any attempt to move the body. It was a reasonable assumption that she was dead. I spent some time on the scene and then left.

The next day I read in amazement two conflicting accounts in the newspapers about what was done immediately after the accident.

Neither of the following report is accurate.

Kaieteur News

He recounted that Sandy was in the middle of the road when he struck her. According to the driver, he exited the vehicle to render assistance and at the time, the woman was still alive, but appears to have succumbed shortly after. She was rushed to the Diamond Diagnostic Centre, where was pronounced dead.

Stabroek News

Following the impact, the eyewitness recalled, the woman was pitched into the air and landed a few yards away from the point of impact. She was picked up shortly after and taken to the Lyken’s Funeral home.

As a person who was on the scene probably about fifteen minutes after the accident occured I can categorically state that the woman was rushed nowhere. She lay dead on the highway for quite some time.

I made some telephone calls and was reliably informed that the body was on the public highway for more than 50 minutes.

I also spoke to an Attorney-at-Law who left the Providence Court about half an hour after I left and saw the body.

I thought it quite sad and depressing that a human being could have met such an unfortunate demise. But equally sad is that after such a tragic accident the body of this poor abused Amerindian woman lay on a public highway for almost an hour in undignified circumstances. Even in death, in my opinion, some respect and dignity should have been extended.

More Justice Delays

2009-06-22T15:30:00.006-04:00

Stabroek News - Rape victim drinks poison over lack of justice, threats

Frustrated that her case is still to reach the courts more than six months after she was raped, and traumatized by the continued threats of her attacker, an 18-year-old girl drank poison in an attempt to end her life, but doctors were fighting to save her last night...(click here for rest of story)

Police Stations "Remodelled"

2009-06-22T15:18:00.010-04:00

Stabroek News - Remodelled Brickdam, East La Penitence stations inaugurated

Home Affairs Minister Clement Rohee last Friday commissioned the remodelled East La Penitence and Brickdam police stations, two of a total of 12 earmarked for modification by the government through the Citizen Security Programme (CSP) with funding provided by the Inter-American Development Bank (IDB).

According to a release from the Government Infor-mation Agency (GINA) the two police stations are now equipped with a case management room, a modern interrogation room, ID parade and witness rooms, a room for domestic violence cases and a children’s waiting room.

According to GINA, Minister Rohee noted that the room for case management is equipped with computerized technology in order for police officers to effectively prepare for legal cases and it also allows for faster retrieval of cross-referencing information on suspects and weapons used in committing crimes. The ID parade room will allow victims to point out suspects without facing them. While commissioning the two police stations, the Minister stated that there needs to be better administrative arrangements at police stations noting that too much ‘slackness’ is taking place.

Rohee said that Cabinet had given the go-ahead for consultancy services for the implementation of five areas of the CSP, these being, development and implementation of a comprehensive training scheme for the Guyana Police Force, institutional modernization of the Ministry of Home Affairs, the designing, development and implementation of an integrated crime information system, the updating and implementation of immigration policies and plans, and monitoring and evaluation of the CSP.

The minister noted that $170M had been expended on refashioning a first batch of 12 police stations in Regions 4 and 6 through the CSP, while for this year, an additional $145M is being provided by Central Government for the rehabilitation of police stations in all 10 administrative regions, the release stated.

Rohee noted that while the administration is doing its utmost to create a better environment for ranks to undertake their duties, it is crucial for police officers to do their part in order to enhance the quality of service provided to the public. He urged the station managers to ensure proper upkeep of the two police stations, urging them also to work together to curb crime.

Preliminary Inquiry Completed In Record Time

2009-06-21T22:18:00.006-04:00

In relation to this post below I find it truly amazing that the preliminary inquiry (PI) of a popular personality was completed with stunning expediency in a record eight weeks which must be a new national record. Then there was this obsequious letter by a former Chief Magistrate.

On the other hand, the PI of this defendant who it seems might very well be mentally incapable of standing trial has been going on for over five years.

The criminal justice system ought to function expeditiously especially where the liberty of the subject is in question. However, should we applaud whenever the court system selectively chooses to function with promptitude? What is for certain is that the averge man on the Kitty/Campbellville bus park goes home wondering why some cases take years to be heard with defendants languishing in prison but others can be disposed of in a matter of weeks.

Is there a system in place using objective criteria that determines what cases are called up for trial early. Should it be done chronologically starting with those who have been detained the longest?

I know personally of a friend who was almost murdered by his landlord who chopped him with a cutlass across the back of his neck. The man was charged with attempted murder and the preliminary inquiry to date is over three years old and cannot be completed. The accused in that particular case had special treatment from the day he was arrested. He was never placed in the police lockups but was allowed to sit on the bench all day. He was also allowed to go home, bathe and change and come back to the station until it was decided that a charge of attempted murder would be laid. The victim was in the High Dependency Unit of the Georgetown Hospital and it wasn't until a newspaper reported that the police never contacted him for a statement that a policeman then visited him to take his statement.

Tomorrow I have to file a bail petition in the High Court for a fifteen year old who was remanded to the Georgetown Prisons since May 27th, 2009 on an allegation that he stole a cell phone and five thousand dollars. In my opinion he should have been placed on bail or remanded to a juvenile facility.

The vagaries of the criminal justice system continue to astound me.

Mental Instability Of Accused Causing Delay

2009-06-18T07:16:00.003-04:00

Brickdam Police Station shooting: Mental instability of accused causing delay : Kaieteur News

The mental instability of a man accused of killing two policemen in the Brickdam compound five years ago was given as the reason for the delay in the Preliminary Inquiry into the matter.

Solomon Blackman, a former policeman, was charged with the March 1, 2004 killing of Deputy Superintendent Richard Griffith and Lance Corporal Ramnarine Latchana when he went berserk during a visit to the station.

Since being charged, Blackman has appeared before three magistrates, beginning with Magistrate Adrian Thompson then to Magistrate Gordon Gilhuys and now Magistrate Nigel Hawke. Still the preliminary inquiry (PI) has not been completed.

Initially it was reported that the delay is stemming from the police not taking the accused to court on several occasions.

Poonia Latchana, mother of one of the dead policemen, had indicated that she was beginning to get the impression that if the police could be so callous about prosecuting someone for the killing of their colleagues, then who else could expect justice from them?

But according to a source, on most occasions when the accused is taken to court, he is not in the proper mental state to appear before the magistrate. “Sometimes he cannot be brought from the prison because of his mental state. Sometimes they actually get him from the prison and he would hold on to the bars downstairs and would refuse to move,” the source told this newspaper.

“He has very good size (is strongly built) and he behaves very badly so very often even if he goes into the courtroom, the Magistrate orders him out and nothing gets going because of his general mental instability ,” the source added.

This newspaper was on hand yesterday at the court and observed Blackman sitting in the office of the court lock-ups, seemingly oblivious to what was taking place around him.

Even when it was time for him to be taken back to prison he had to be pleaded with to leave his position.

As he was heading to the prison van he muttered under his breath, “Y’all wasting me time.”

Even the ranks at the court were not too keen on dealing with the accused.
“You come and carry he nuh,” was the suggestion of one of the ranks when asked why Solomon was not being taken before the Magistrate.

This newspaper was told that during the earlier hearings before Magistrate Adrian Thompson, a request was made to have Blackman deemed incapable of standing trial.

The psychiatrist at the time had indicated that he is a patient of his and that he had examined him on several occasions at the Georgetown Prisons. “His conclusion is that he (Blackman) is mentally unstable,” the source pointed out.

Kaieteur News was told that there was some amount of apprehension about taking Blackman to the Psychiatric Hospital in Berbice since the facilities there are not adequate to contain a person of his disposition.

“There is no facility to keep him under lock-down. And given his violent outbursts it was the general feeling that to send him there may not be the right thing to do. Persons just kept hoping that maybe the medication, while at the prison, would bring him around to stand trial,” the source said.
However, it was disclosed to this newspaper that Blackman has been refusing to take his prescribed medication.

“Who can force feed him or force him to take medication?” the source added.

According to the source, despite Blackman’s position, he is not special, and like any other person who is charged with murder, the matter will proceed once he is deemed capable of standing trial.

The source explained that if at any point Blackman has a lucid moment where he can follow the proceedings and instruct counsel, the proceedings will take place.

Kaieteur News was told that the Director of Public Prosecutions (DPP) has requested from the prison a report from the psychiatrist treating Blackman, before the man’s next court date on July 20.

From all appearances, taking into consideration the provisions in the constitution, there is nothing that can be done to proceed with the preliminary inquiry, once the accused is deemed mentally unstable.

“Let us say, for example, he goes into the court and he does what he has done in the past…becomes so disruptive that the court cannot proceed, once he is ejected from the courtroom, the PI cannot continue. Unlike England and other countries, we don’t have legislation that allows us to proceed with a PI in the absence of the accused,” a legal source told this newspaper.

But the situation has become overbearing for Poonia Latchana.

“I go on all the occasions; I travel from Berbice to town and I am never absent a date. I want justice in my matter, with due respect, I need justice. He was my only child and it is grieving me,” the woman said, breaking into tears.

She said she has written several letters to the Chancellor of the Judiciary, the DPP, the Attorney General and to the media and nothing has happened. What has become clear is that should Blackman never show any sign of being able to stand trial the matter may never be completed.

“The only thing that can be done is a court of competent jurisdiction committing this man to a mental institution, if the court is satisfied that he is mentally unstable.

“If he is in that institution and he can be medicated to the point where he has lucid moments, the matter can be proceeded with. Murder has no time limit and in this case it is not that the state is not trying to prosecute him; in this case his condition is delaying it, so the abuse of process argument that another accused who waits for ten years may be able to use, will not be successful to him,” the source said.

The only limitation is that by the time Blackman is fit enough to stand trial, many of the witnesses, like Mrs. Latchana, who believe that he is faking mental illness, might not be around to testify.

Brickdam lock-ups redesign ready - Rohee

2009-05-15T07:15:00.002-04:00

Stabroek News - 13 May, 2009

The design for the rehabilitation of the Brickdam lock-ups has been completed and work is set to start by the end of the year to the tune of $10M, Home Affairs Minister Clement Rohee said yesterday.

The lock-ups has been in the spotlight recently over its woeful and insanitary conditions and when asked about its renovation Rohee yesterday said he would not give a timeframe on when the work would be completed but said “hopefully it would by the end of this year.”

The renovation of the lock-ups is among the projects that will benefit from the $13.6 billion budgeted for the security sector in this year’s national budget.

Many persons who have spent time in the Brickdam lock-ups have described it as an experience they would not wish on anyone. On Monday at the opening of the annual general meeting and conference of the Association of Caribbean Commissioners of Police (ACCP), Caricom Assistant Secretary-General Dr Edward Greene spoke about the dehumanising conditions under which persons are detained. He said such conditions “epitomise the abuse of their human rights,” which has “serious implications for the image of the police and the legitimacy of their role as one of the agencies of human and social development.”

Minister Rohee, when asked about Dr Greene’s comments, said he understood the context in which the Caricom official spoke since he represented the Caricom Secretariat and not necessarily any government. However, in relation to Dr. Greene’s quoting a section of a Stabroek News editorial to bring home his point of police reform, Rohee said he was “not sure how balanced it was in terms of reflecting the realities in the country.” He said Dr Greene’s words were nothing new as this has been said about police forces and detention centres across the Caribbean. He added that there would always be criticisms and comments that are made about police lock-ups and detention centres and it is a situation that is never perfect.

‘Puke’

The mother of two young men, who spent ten minutes in the facility two Sundays ago, told Stabroek News yesterday that she was invited to see the condition of the lock-ups when she went to collect her sons but was forced to turn back at the door. “As soon as I entered the doorway the stench was so repulsive I had to turn back and run and puke in the drain,” the woman said. One of her sons described the lock-ups from his stay as being “dark and stink.”

Last week, Owen John, who along with his two sons spent many hours in the facility, said after the experience he feels he now can endure anything. The man and his sons, who have since been charged, were arrested under controversial circumstances and were forced to spend several hours in the lock-ups.

That man had said when he and his sons first entered the lock-ups they were shocked to see about 40 men lying on a concrete floor. Some were lying on a sheet; others were on old newspaper, and the rest on the bare concrete. “It was not a pleasant sight at all,” he stated.

“The place is an abomination”, he added, “not even a dog or a pig should be kept in such conditions.” He emphasised that the “the place is stink and very insanitary and inhumane,” recalling that while he was in the lock-ups he observed a man with cuts on his mouth and back “oozing with puss.” According to him the man was clearly in need of medical attention but this was not done although he had recommended it.

Last year, a push-cart operator who spent four days in the lockups after getting into an altercation with another man told this newspaper that the two toilets in the facility could not be used because they were overflowing. There were cells, he said, which were not utilised for the purpose for which they were intended because they had become toilets, and were filled with faeces and urine. The front of these cells only is cleaned every day by a young man who sprinkles some pungent smelling disinfectant, but that hardly begins to address the extent of the problem.

A young professional with whom this newspaper had spoken to had said: “The first thing that hits you is the stench. It is a smell that no human being should have to experience. The smell is so unbearable that it causes your eyes to water and your skin to burn.”

There are no lights and prisoners sleep on the bare concrete−and in this instance−unhygienic floor. The cart-operator had said that detainees were only allowed one small drink bottle of water with which to wash themselves, and anyone who didn’t have bottles simply had to go unwashed. The thing that upset him most, he had said, was that the morning tea was served to detainees in the same bucket which was used to clean the cells. It was dished out from an enamel cup into a detainee’s bottle, and if they had no bottle then no tea.

The lock-ups are not for those who have been convicted; they are for people who have been detained by the police and who may or may not be charged. In fact, with the wrong combination of circumstances it is conceivable that ordinary law-abiding members of the public could find themselves by mistake locked up in Brickdam for a night or so.

In January 2002, Chairman of the Bar Council of England and Wales, Lord Daniel Brennan QC had recommended that the facility be shut down after a visit to Guyana aimed at improving the local judicial system. During his visit Lord Brennan met with members of the judiciary, the police force and the prison service. He had also toured the Camp Street Prison calling it a “reasonable” facility but had said that the Brickdam lock-ups should be “locked up and closed.”

Retired Judge Flays Magistrate's Decision

2009-05-15T06:58:00.002-04:00

Stabroek News -15 May, 2009

Retired judge Prem Persaud has criticized the decision by a magistrate in a recent case for reprimanding and discharging an unlicensed driver for Breach of Insurance and said that the decision reflects insensitivity to the particular offence and lack of knowledge of what the penalty should be.

However, Magistrate Fazil Azeez defended his decision and says that the context in which the sentence was handed down must be considered. He expressed surprised at the retired judge’s comments.

On May 6, appearing before Magistrate Azeez at the Vreed-en-Hoop Magistrate’s Court, Romeo Randolph, a farmer of Hog Island, Essequibo River admitted to charges of dangerous driving, driving without a licence and breach of insurance. He admitted that on May 6 on the Ruby public road, he drove his car, PLL 5706 in a manner dangerous to the public. He also pleaded guilty to being an unlicensed driver and thereby being in breach of insurance in respect to third party risk. The magistrate fined him $75,000 with an alternative of 12 months imprisonment on the first charge, $15,000 with an alternative of three months imprisonment on the second charge and reprimanded and discharged him on the breach of insurance charge.

Rudolph was the driver of one of the cars that was involved in the accident at Ruby, East Bank Essequibo on May 3 in which another driver, 26-year-old Ramesh Sookdeo died.

In a letter published in the Guyana Chronicle yesterday, Justice Persaud outlined the case and said that the order of the magistrate reprimanding and discharging the defendant for the offence of Breach of Insurance “reflects the insensitivity of the magistrate to that particular offence, his lack of knowledge of what the penalty should be, or whatever consideration impelled him to so do.”

Justice Persaud said that the legislature has provided that for a Breach of Insurance offence the penalty must be imprisonment and a person so convicted shall be disqualified from holding or obtaining a driving licence for a specified period of time.

“It is a serious offence. If anyone is convicted for breach of insurance, a person who may have suffered loss or damage in an accident will not be compensated by the insurance company. The legislature has viewed the breach of insurance so seriously it has mandated that should anyone be so convicted and appeals the Order of the magistrate he will not be permitted to drive, despite the notice of appeal pending the hearing and determination of the appeal. Court prosecutors should be au fait with the penalties and insist that the Courts make the requisite orders”, he said.

However, when contacted last evening, Magistrate Azeez defended his decision. “We must not fall into the trap of looking at things in isolation”, he stated. The magistrate pointed out that Rudolph had faced three charges and in pleading guilty had explained that he was unaware that by driving without being licensed, he had breached the insurance. The magistrate said that ignorance was no excuse and he did not ignore nor condone the fact but the case must be looked at in totality. He said the circumstances must be taken into consideration and the police investigations had revealed what had happened and this was explained by the prosecutor in court.

Magistrate Azeez pointed out that there are two types of breaches of insurance and one refers to a situation where there is no insurance for which there is no reprimand but the car which Rudolph was driving had insurance but because he was not a licensed driver, he breached the insurance. The magistrate declared that he showed no leniency and if the Director of Public Prosecutions does not feel that the penalty was appropriate, the sentence can always be appealed. He said that the retired judge should understand the context in which the reprimand was made and other factors had also been taken into consideration such as Rudolph did not waste the court’s time.

Magistrate Azeez expressed surprise at retired Justice Persaud’s statements and said that he could have contacted him about his concerns as he does not think that he was fully aware of the case.
Meantime, Justice Persaud in his letter also said that “Traffic” is a specialised field, and traffic policemen and officers should be acquainted with all aspects of the legislation. Recruits should not be sent out to be traffic officers who “willy-nilly” stop drivers on the roadway to check on “papers”, he said.

“Can we get the traffic officers not to hold on to drivers’ papers and invite them to go to the police station to await their arrival there? If drivers commit offences let them be issued with tickets. When a policeman holds on to a person’s driving licence he is aiding and abetting the commission of a criminal offence – that is to say – permitting that person to drive without being in actual and physical possession of a driving licence, which the law demands”, he asserted. The retired Justice said that traffic policemen should have a campaign, now and then, to check on drivers to ensure that they are licensed to so do, and that policies of Insurances are in force.

“I hope all who are involved take the time to do their work in a proper manner or in the alternative seek other avenues where they may feel more comfortable”, he added.

Time Limit On Judgments

2009-05-03T10:40:00.003-04:00

Stabroek News - 3rd May, 2009

Chancellor (ag) Justice Carl Singh believes time limits for judicial decisions as set out in recent legislation can actually contribute to an increase in the chronic backlog of cases.

He believes a change in the judicial work ethic is what is required, for judges to adopt a more responsible attitude to timely delivery of judgments, which “perhaps could have been achieved without parliamentary intervention.

“I understand that there were good intentions behind the bill and I would be the first to admit that there is sloth in the judicial system… The bottom line is that a judge, who is saddled with the possibility of sanction for failing to meet the deadline, is not likely to proceed at bullet train pace to complete all of the cases assigned to him for adjudication,” the Chancellor stated.

In an interview with Stabroek News last week, the Chancellor recalled perusing a draft of a [similar] bill that was sent to him some months ago, and which he subsequently circulated among the judges. However, Justice Singh disclosed that he is unaware of the provisions of the bill that recently engaged the attention of the National Assembly.

The Chancellor said the judges had expressed views on the draft bill which coincided with his own, and, collectively, their comments, criticisms and observations were communicated to the Chambers of the Attorney General, who at that time was Senior Counsel Doodnauth Singh.

“We don’t know whether they were taken on board. I have not seen the bill that was recently passed,” Justice Singh added.

He said that from the newspaper reports he has read on the legislation, his conclusion was that the bill could actually contribute to an increase in the backlog. He stressed that this was his personal view.

Justice Singh said he would not be surprised if judges stopped taking files home, and since this would mean that the judicial hours of work would be utilized for adjudication and judgment writing, it could possibly lead to a slow down. “…I fervently hope that that does not happen,” the Chancellor said.

Prior the legislation, Cabinet’s draft bill, of which the Chancellor spoke, was quietly being met with resistance from the legal fraternity, and according to reports, an outright rejection of it seemed imminent. The bill had been sent to the Guyana Bar Association (GBA) by the Office of the President for comments, but the legal community had been slow in responding. Subsequently, Head of the Presidential Secretariat Dr Roger Luncheon accused the bar association of foot dragging.

Parliament unanimously passed the new bill on April 23. It sanctions judges if they fail to comply with the time limits, providing that “a case shall be tried as expeditiously as possible in an endeavour to conclude the case within such a time as the complexity and the relevant evidence necessitate.” It says that a judge who presides at the trial of a civil case shall give an oral or written decision and the concomitant reasons at the conclusion of the hearing of the case or as soon as possible; but not later than 120 days afterward.

Backlog worse
Chancellor Singh said that the backlog of cases has already increased, given that last year’s load has now accumulated. The current backlog is said to be in excess of 13,000 cases.

He underscored the importance of adequate and available judicial resources in tackling the backlog, adding that it would be humanly impossible to make a dent on the buildup given the existing complement of judges. Justice Singh added that at minimum there needs to be an appointment of part-time judges to deal with this problem.

The ongoing Justice Sector Modernization Programme will soon undertake a study to determine the exact quantum of the backlog in assessing the way forward in eliminating it, the Chancellor said, while noting that the goal is elimination and not reduction.

And in addressing concerns that some judges were not sitting full hours, he said it would be difficult to gauge a judge’s presence on the bench and in court as a mark of the judge’s work because a judge’s work was adjudication, research and writing judgments.

“… So that absence from the bench, if that is being employed as an indicator that judges are not giving a full day’s work, is something to which I am not one to subscribe… Here in the Court of Appeal we are fully involved, and I have received no complaints from the Chief Justice that judges are not giving a full day’s work,” Justice Singh said.

The Chancellor lamented though some judges had many judgments outstanding for hearings in the Court of Appeal, and they been asked to deliver those judgments. Additionally, he said, there have been several instances of judges leaving the bench with decisions outstanding and cases incomplete within recent times.

He said that the Judicial Service Commission (JSC), up until the recent legislation that seeks to impose sanctions on untimely decisions, had no policy of discipline for outstanding judgments. According to him, the current commission of which he is chairman, and commissions of the past were found wanting for not being more vigilant on this issue.

Paper committals
Legislation was enacted for paper committals to be applied in hearings in the lower court in October last year, but the Chancellor is still to receive a courtesy copy of the act.

There has already been one instance where the application of a paper committal was sought and the court ruled against the state. The case involved five young boys who were allegedly sexually abused by a businessman.

Justice Singh said he was unaware of the first application for a paper committal, and emphasized that he was disadvantaged in his response because, “a courtesy copy of the legislation was never sent to me.

“…. I understand there is similar legislation in Trinidad and that there are accompanying guidelines and regulations, if it is that our act is patterned after similar legislation in Trinidad, I would assume that regulations and guidelines might be necessary,” he stated.

Justice Singh did point out that the concerns of the judiciary can be communicated to the Attorney General and Minister of Legal Affairs, Charles Ramson, SC. But he opined that the proper approach would have been for the bar to take up the issue as a cause it could champion. He added that the bar would be perfectly entitled to write to the AG on the issue.

Sector reforms
As regards the work of the Project Executing Unit of the High Court on reforms in the sector which he heads, Justice Singh said acquisition of library material has improved under the project, and a consultancy has completed its work on a draft Judicial Service Commission (JSC) bill and accompanying regulations.

He said the bill, which will go to cabinet shortly en route to the National Assembly for approval, seeks to address jurisdiction and function while encapsulating the JSC in a statutory framework.

Justice Singh said also, that there is ongoing work on revised rules of the High Court, adding that a new Bail Act has been drawn up and that there are ongoing consultations with the bar.

“We are shortly to embark on a massive rehabilitation of Magistrate’s Court across the country, and the project is also actively considering the refurbishing of the electrical circuitry of the High Court and the Court of Appeal, as well as the provision of back-up power sources,” he disclosed.

But more importantly, the Chancellor revealed, a proposal is being drawn up, which will lead to the establishment of a Public Law court that can hear both administrative and constitutional law matters. Also, he said, the Family Court is to be launched shortly, adding that both of the courts are going to be set up as divisions of the High Court.

Sita Ramlal
With regard to the recent indictment of Supreme Court Registrar Sita Ramlal, the Chancellor said that her absence will undoubtedly have an impact on the work of the court given that the Registrar is the Chief Executive Officer of the court.

Justice Singh called the Registrar’s present situation, “unfortunate”. He said the indictment is an issue that will certainly have to be considered by the JSC.

Bar Association Statement

2009-04-23T21:30:00.004-04:00

21 April, 2009

Statement by the Guyana Bar Association

RE: ATTACK ON THE ADMINISTRATION OF JUSTICE

The Guyana Bar Association and members of the legal profession, strongly condemn the recent criminal attack which occurred at the residence of Magistrate Nigel Hawke. As a profession and society, we cannot tolerate or excuse violence of any kind, in this instance against a judicial officer. The safety of judicial officers is of utmost concern to the Bar. The safety of judicial officers is a fundamental prerequisite in: the fearless administration and dispensation of justice; the maintenance of the independence of the judiciary and the upholding of the Rule of Law. To protect the safety of judicial officers the Guyana Bar Association urges:

1. The Guyana Police Force:

a. To exert all efforts to secure the immediate apprehension and prosecution of the offender responsible for the attack on Magistrate Hawke and his family;

b. To introduce guards at the residence of Magistrates, as done at the residence of Judges;
c. To commence and continue regular mobile patrols at the residence of judicial personnel.

2. The Executive:
a. To join in the condemnation of the attack;

b. To introduce personal security as a fundamental condition in the hiring of judicial personnel at all levels;

c. To support all efforts that will preserve the safety and security of all judicial officers;

d. To allocate sufficient financial resources, firstly to address the impacts of this attack and secondly, to ensure the provision of adequate security for all judicial officers.

3. The Judiciary:
a. To join in the condemnation of the attack;
b. To continue to dispense justice and uphold the rule of law without fear or favour;
c. To defend against all threats to the independence of the judiciary;
d. To develop and implement guidelines and protocols for judicial security.

4. The Profession:
a. To join in the condemnation of the attack;
b. To offer our fullest support our colleagues and their family;
c. To continue to maintain and defend the foundations of our justice system.

Let us all use our collective efforts to preserve the fundamentals of our justice system.

Yours faithfully,

Teni Housty
Attorney-at-Law
President,
Guyana Bar Association.

More Criticisms On The English CPR

2009-04-16T10:44:00.006-04:00

Pursuant to this criticism on the English CPR here is another perspective by an English Judge and a Queens Counsel on the problems faced in England since the introduction of the new CPR.

New Civil Procedure Rules

2009-04-14T21:01:00.004-04:00

In Guyana we are poised to enact new rules of civil procedure modelled on the English Lord Woolf reforms.

The general consensus seems to be that the enactment of the new CPR is a forward step which will drastically improve our civil practice and procedure.

Against this background and the recently concluded consultations on the draft CPR for Guyana I found this article very interesting in which a Queens Counsel in the UK surpisingly opines that the CPR in England have been a disaster for their civil justice system.

Why Isn't Our Judiciary Online?

2009-04-12T21:29:00.006-04:00

It is difficult to understand why in this modern age of advanced information the Judiciary of Guyana is yet to launch a website and publish its decisions online. The time for this is long overdue.

Many courts around the world are online with easy access to judgments. Some countries publish their judgments within twenty-four hours of it being handed down. In the Caribbean we have instant access to the judgments of our sister countries such as Trinidad and Tobago, Belize, Barbados, Jamaica and the Eastern Caribbean Supreme Court which services nine jurisdictions and has its own single Court of Appeal. The Caribbean Court of Justice has had its own website since it came into being in 2005.

The Judiciary of Guyana should have been online yesterday. The decisions of Judges in the High Court and the Court of Appeal should be published online as soon as they are made available. The balance of convenience leans heavily in favour of establishing a website and publishing judicial pronouncements online. It is difficult enough as it is to locate judgements of the lower courts in particular. Judgments of the Court of Appeal can be relatively easily obtained from its library as soon as it is available. However, by some strange shift in reasoning one cannot obtain current decisions of Judges of the High Court in the newly refurbished and highly impressive High Court Library.

I use the new High Court library regularly. It has an impressive collection of updated law reports, journals and new legal texts. One major service is missing. All decisions of judges of the High Court together with Court of Appeal decisions should be available. It should be mandatory that as soon as a Judge hands down a decision a copy should be filed with the library. While there are High Court judgments available in this library there isn't a complete collection of all judgements issued by the High Court on a yearly basis.

I would like to see a written record of all judgments issued on a yearly basis and by each court. It is of considerable convenience to a practicing lawyer to have instant access to the judgments of his own national courts.

These written records are also subject to independent analysis. One can scrutinise this list and see the total number of written judgments handed down on a yearly list. This should be subdivided into judgments issued by each judge. It would be very interesting to see how many written decisions each judge delivers on a monthly and yearly basis. Current anecdotal evidence suggests a very disproportionate number. Some judges write more than others. Other judges have retired without reducing into writing numerous judgments that they delivered orally.

We are in the penultimate year of the end of the first decade of the twenty-first century. An online Judiciary is as basic as it gets. Immediate and convenient access to information is as basic as it gets. I find it somewhat incredulous that I can obtain online a judgment from the Privy Council or even a sister Caribbean country within 24 hours of it being delivered yet it would prove virtually impossible for me to obtain within a similar time frame a decision of a local judge. Where is the logic in this? Unless I hear of a particular judgment or I speak to a lawyer who was involved in a case where a written judgment was handed down there is no mechanism for me to obtain a copy. Even if I am able to obtain one or two recent written judgments of a Judge in the High Court it is Herculean to try and ascertain much less obtain all written judgments available for the year or for the last year.

A Judiciary is respected further afield when its decisions can withstand regional and international scrutiny. Publishing decisions online as soon as they become available could be a first small step. Access to information is a cornerstone of any functioning democracy. As a fledgling democracy Guyana needs to consolidate its gains in this regard and it is respectfully submitted that rendering the Judiciary online and publishing judgments online immediately is a respectable first step along this path.

UK Judges Challenge Age Of Retirement

2009-04-05T09:25:00.002-04:00

Two UK Judges challenge age of retirement.

Opinion: Unjustified Criticisms On The Courts

2009-04-05T09:23:00.002-04:00

Stabroek News - Ministry of Home Affairs’ attack on the courts unjustified

Dear Editor,
I am responding to an article captioned ‘Jamaicans fail to show for drug trial after granted bail —Home Affairs Ministry lambastes courts’ contained on page 3 of the Stabroek News dated March 27, 2009.

The ministry’s attack upon the courts is totally unjustified. The courts do not exist to help the police, they are there to ensure that accused persons are given a fair trial within a reasonable time. The concept of separation of powers seems lost on the ministry. The court has to be impartial and must never be thought of as an agent of the state in the administration of justice. The ministry seems to think that once a person is charged he is guilty. The law does not operate that way.

That the trial of the defendants in the instant case was not started for several months must be blamed on the omissions of those responsible for ensuring that persons charged are tried within a reasonable time − in this instance, the state.

Sufficient courts and magistrates should be a priority if persons are to be tried within a reasonable time. Not only the ‘Drug’ Act recognizes this. The Constitution of Guyana also mandates trial within a reasonable time. The past and present judicial thinking is that reasonable time for a trial to begin in the Magistrate’s Court is three months. In the instant case the defendants were charged in April and in September their trial had still not commenced. In fact the case was postponed from July to November. It was in the intervening September that bail was granted.

My information is that it was not because the defendants wanted time to retain a lawyer that the trial did not begin in July, but because the Government Analyst’s report was not ready to be tendered in evidence by the prosecution. Assuming that they did want time to retain a lawyer, how could an adjournment to November, a period of four months, be justified?

What is to happen if a trial in a ‘drug’ case does not begin within a reasonable time? Should counsel for a defendant in such a case just sit back and do nothing to secure the pre-trial liberty of his client, especially when the law and constitution provide for a trial within a reasonable time? I submit the lawyer in the instant case did the right thing − approach the High Court for bail.

Given the circumstances in the case at hand, what is a judge to do in those circumstances other than grant bail, because there is no possibility of the trial commencing until November at the earliest − seven months after the first appearance in court.
In this case the Judge was right to say, I am granting bail because the failure to commence the trial within a reasonable time is both unconstitutional and amounts to ‘special reasons.’

Additionally, it has been argued that section 94 (which deals with the issue of bail, not section 93) does not prevent a judge from granting bail even though there are no special reasons. This argument has some degree of cogency because court is defined in Section 2 of the act as the “High Court.” Section 94, which deals with bail, refers to court and not Court.

A judge of the High Court has an inherent and statutory discretion to grant bail which cannot be curtailed by statute since it relates to the liberty of the subject, which is a core function of the High Court and is necessary to prevent an injustice, which was apparent because of the unwarranted delay on the part of the prosecution and the indulgence of the Magistrate adjourning the case until November, assuming the defendants wanted time to retain a lawyer. If in fact the defendants wanted time in July to retain a lawyer, not more than two weeks should have been allowed.

The presumption of innocence is still law in Guyana and must be respected. That is why our system of trial is the best in the world. We inherited it from the British and it is noteworthy that it prevails in every Commonwealth country.

Government ministries must not ever attack our judges on such a baseless foundation. Our judges are over-burdened and work hard. They must be left alone to administer the law to ensure that justice prevails.

Yours faithfully,
M Bacchus

UK: Should Judges Retire At 70

2009-04-05T09:09:00.002-04:00

David Pannick QC on whether Judges in the UK should retire at age 70.

High Volume Of Cases In Supreme Court

2009-03-14T08:27:00.001-04:00

21,366 civil matters pending at the end of 2007 : Kaieteur News

The Supreme Court’s Annual Report for 2007 states that at the end of that year there were 21,366 civil matters and 512 criminal matters pending for 2008.

Of the civil matters, only 72 went to the Mediation Centre for 2007.

According to the report, if two judges were to hear and conclude one civil matter every day for the 249 working days of the year this would mean that a total of 498 matters would be completed.

However, it added, this is not possible, since civil matters in the High Court sometimes involve complex issues which require hearing of evidence over a number of days.

“Assuming for the sake of argument that two judges could complete these matters, including delivery of decisions, it would mean that, deducting this number from the 5,600 cases filed, the average backlog would be 5,102,” the report said.

It also pointed out that, given the assignment of work, the present number of judges is inadequate to deal with the number of cases filed. “Every effort must therefore be made to increase the present complement of judges, and to utilise the provisions of Article 128A of the Constitution to appoint part-time judges.”

The document further noted that retired judges can be employed as part-time judges to help with the backlog of civil and criminal cases.

According to the report, during 2007 a total of 5,600 civil matters were filed in the Supreme Court Registry, Georgetown; 1,083 in the Sub-Registry, New Amsterdam; and 117 in the Sub-Registry, Essequibo, making a total of 6,800 matters filed.

To this, it said, must be added the backlog of 1,317 civil matters in Berbice, 82 in Suddie and 17,814 matters in Georgetown, making a total of 19,213 backlog matters to be added to the 6,800 filed in 2007, making a grand total of 26,013 matters to be heard in 2007.

The Judges heard and determined 3,822 matters in Georgetown, 761 matters in Berbice and 58 in Essequibo, making a total of 4,647 matters completed and leaving a total of 21,366 matters pending for 2008. The Report said that the number of matters disposed of goes as far back as 1998 in Berbice and 1995 in Georgetown.

“At this time, in addition to the older cases that were filed in the 90s, cases filed in the years 2001 and 2000 are being assigned for hearing in Berbice and Georgetown respectively.”

The number of civil cases awaiting trial in the court continues to escalate.

The staff of the Supreme Court Registry continues its audit of all matters filed in the Registry by bundling them into categories of matters that are abandoned, deserted, ripe for hearing, and pending in the Registry for pleadings, to be closed, or for decision to be delivered by the judges, the report added.

“Matters that are ripe for hearing are sent up to the Chief Justice for assignment to judges for hearing. The deserted and abandoned matters are assigned by the Chief Justice to judges who have a call-over of these cases, so that attorneys-at-law and their parties can be heard.

This results in matters being restored for hearing by the Court or struck off the list as being abandoned or deserted, as the case may be.”

The report added that the Supreme Court is also using Alternative Dispute Resolution methods to deal with cases listed for trial.

The Mediation method, it noted, is being used on a voluntary basis, but there are plans to make Mediation a compulsory step in civil procedure rules, and also to expand the pool of trained mediators available to do mediation. According to the report, at the end of December 2007, there were 72 matters that went to the Mediation Centre. Of this number, 67 were referred by judges of the High Court and five through requests by clients/attorneys.

To this number must be added the pending 140 from 2006, making a total of 212 pending for hearing in 2007.

Of this number 63 were successfully mediated, leaving 149 pending as at December 31, 2007.

“…It is hoped that this will change when mediation is made a compulsory step in the new Civil Procedure Rules.”

Inquest Ordered Into Death Of James Nelson

2009-03-11T22:34:00.001-04:00

An inquest has been ordered into yet another death of a prisoner whilst in police custody. James Nelson was discovered dead in the now infamous Brickdam Police Station lockups in October of 2008. In recent times we have observed reports of many deaths of persons whilst in police custody or in prison.

We live in a democracy and in a modern society where the principles of human rights are constantly developing in favour of the citizenry. National and international courts and tribunals are constantly pronouncing and re-defining the human rights we all enjoy. Why then are so many prisoners dying in official custody? It cannot be disputed that arrested persons in the cell of a police station awaiting bail or a charge; convicted prisoners; prisoners on remand; and juveniles in juvenile detention centres are all entitled to legal rights. Some of these legal rights include not to be subjected to torture; cruel, inhumane or degrading treatment and are enshrined constitutional rights and human rights the world over. For a small country it is cause for grave concern if not outrage given the fairly high number of persons dying whilst in police custody. This is unacceptable and more public inquiry and outrage needs to be registered whenever these gross violations occur. More independent investigations with aggressive follow up action including prosecutions should be ordered whenever these travesties occur. It is not the hallmark of a civilised society. It is not the hallmark of a democratic society and it is certainly not the hallmark of a professional and highly respected police force.

These travesties of justice each time they occur must be enduring tragedies to the close families and friends of the deceased. How can a family member come to grips with the death of a loved one who was not charged or convicted of a criminal offence but was arrested and before a charge or a trial the person dies in questionable circumstances whilst in custody. Only those who personally experience those tragedies can truly attest to the pain and suffering.

James Nelson we are told was a former soldier who went into the Ministry of Home Affairs protesting loudly over some monies not paid to him by a contractor who fired him. It is said he behaved disorderly. A passing patrol picked him up and he was deposited in the Brickdam lockups. He was discovered dead the next day. A post mortem concluded he died of haemorrhage and shock due to multiple injuries. His wife claimed the injuries included a ruptured spleen. His son who saw the body after it was discovered claimed the face and hands were swollen and there was a gaping wound to the back of the head.

I am personally of the opinion that the mere statement that an inquest will be held is not sufficient. When will the inquest be held? Were statements taken from all the prisoners who were in the lock-ups on that fateful day when Nelson met his demise? Were statements taken from all the police officers who were on duty? If so, were these statements all handed over and examined by the Police Complaints Authority and the DPP? The police must have a book in which all persons entering the lockups are logged in. Was this examined to identify all the prisoners who would have been in the lockups at the material time and then cross checked to see if all of them gave statements? An examination of those statements must reveal consistenties or inconsistencies.

One aspect of the broader picture of course is how does this affect the overall reputation of the police force. It must have a negative impact. If citizens have no public confidence in the police force then they will not discharge their civic duty and co-operate with officers and provide tips and information. Citizens will react with fear and distrust whenever the police are involved. The Police Force does not and cannot effectively discharge its mandate if public confidence in it is constantly being eroded. That being said the Guyana Police Force has enjoyed relative success in recent times in quelling the crime situation which had once reached frightening proportions. However, those gains made can easily be lost whenever specific incidents such as torture, excessive force and questionable deaths whilst in police custody rear their ugly heads. It is the nature of human beings to easily forget the gains but quickly remember the losses and screw-ups.

It is for the Guyana Police Force to consolidate its gains and work harder to ensure that these travesties do not re-occur. There is no room for complacency. At the end of the day it is our police force and we have to support them as taxpayers. They are the ones we turn to for protection. But we are also allowed to be critical when the circumstances so warrant.

Another Instance Of Police Witness Not Turning Up

2009-03-11T22:25:00.002-04:00

Charges have been recommended after the sloppy non-prosecution of Terrence Sugrim.

More Torture Allegations Against Joint Services

2009-03-07T08:17:00.003-04:00

Kaieteur News - March 3, 2009

Residents of Wakenaam are insisting that some of them were tortured by ranks of the Joint Services following a raid early Sunday morning which netted a whopping $20M worth of cocaine. The drug was found in a camp on the island. But officials of both the army and police force have denied receiving any reports to that effect.

Ranks from the Joint Services unearthed a whopping 50 kilogrammes of cocaine in a barrel in a camp on a farm operated by a man whom they are still trying to apprehend.

Pulmattie Rambajue is alleging that her stepson, Ryan Gordon, was brutally beaten by the ranks and has had to seek medical treatment in Parika, while Mitchell Thomas’s body bears the evidence of him being made to lie in an ants’ nest, and of a severe beating for which he is also seeking medical attention.

Speaking to this newspaper yesterday from Leguan where he has fled, Thomas, a farm-hand, related that he was near a camp on the island of Wakenaam when a man in civilian clothes with plaited hair confronted him with a gun. He said that at the time he had no idea that the man was a member of the Joint Services. According to Thomas, the man upon seeing him called out to his colleagues, and several other heavily armed men joined him. Thomas said that they held him at gunpoint.

He explained that he only realised the men were from the security forces when he saw one of them with what appeared to be army apparel. Thomas said that the men placed him in a huge ants’ nest and left him there for several minutes while the insects bit into his skin. His privates did not escape the ants. He said that they then put him to lie on his stomach and proceeded to beat him all over his body.

“Dey carry me in de bush with me bare foot and beat me, telling me that I gat fuh find some man and some bag,” Thomas told this newspaper.

He said that he was subsequently let go, but only after the men had satisfied themselves with the beating they had inflicted on him.

According to Thomas, he works on a farm that is owned by the man for whom the law-enforcement officers were seeking in connection with the huge cocaine find.

He said that except for the farm he knew nothing of what his employer was allegedly engaged in. “Me whole skin is sheer boil,” he remarked, adding that he has been instructed to seek further medical attention.

Pulmattie Rambajue recalled that her stepson, Ryan Gordon, 17, was at home when the ranks came calling. She said that the ranks asked her where the young man was.

This newspaper was told that the young man had only minutes earlier talked to the wife of the man the ranks were seeking.

Reports are that after the ranks detained the man’s wife she contacted the teenager and told him to go and find her husband, because the ranks had threatened to hang her from a tree in the bush.

But a source said that the youth informed her that he did not know where her husband was and discontinued the telephone call.

It is believed that the ranks were then directed to the teenager’s house.

“If you see how dem hold he by he pants and drag he down de road. Dem slap he up in he face. If you see how dem beat him,” Rambajue related.

She added that the young man was forced to lie on his belly and crawl.

“Dem put wood pon he shoulder and stand up pon he. One ah dem tek he gun and shove it up he ears. Dem proper beat him,” Rambajue said. The teenager has fled to Parika since some of the ranks are reportedly still combing the island.

The residents said that they are afraid that more persons could go through similar treatment in the ranks’ quest to locate the main suspect in the cocaine bust.

According to a source, residents had protested the detention of the main suspect’s wife, since they claimed it should have been done in the presence of at least one female rank. When contacted, Police Commissioner Henry Greene said that he was unaware of any reports of misconduct by the ranks but, since it was a Joint Services exercise, he will be discussing the allegations with the Chief of Staff of the GDF.

Army Lieutenant-Colonel Windee Algernon informed this newspaper that the GDF is also not in receipt of any such report.

“We have no information on torture during the operation. If we are in receipt of a report we will investigate,” the Lieutenant-Colonel told this newspaper. The victims have indicated that they will be lodging complaints with the relevant authorities.

Nagamootoo On Cheddi

2009-03-07T07:59:00.002-04:00

Kaieteur News - March 4, 2009

On Friday, February 14, 1997 (Valentine’s Day), Cheddi Jagan suffered a fatal heart attack. He battled heroically in hospital for twenty-one days, but succumbed on March 6.

The late Cheddi Jagan gave over fifty years of his glorious life to his country and people. At 79, he had reached the pinnacle of service. He died at his post as the Republic’s first democratically-elected President and Commander-in-Chief of the Armed Forces. He had earned the stature of a Mahatma and, indisputably, the Father of the Nation.

Many assessments have already been made of his life, and more would be made. But without accounts from those who shared the experiences of his life and struggles, much could remain unsaid, and lost.

Much would be said about his politics and ideology. But the Cheddi Jagan I knew during the three decades I had worked alongside him was essentially a patriot wrapped up in a set of attitudes. Those, for me, better explained his personality, his world outlook and his convictions.He was, as he himself had admitted, a workaholic. During his unenviable stint as Opposition Leader (1964-92), when he was not attending a party or public meeting, he devoted time to reading, researching and writing. He was a patient listener who constantly learned from the views of others.

Because of those multiple tasks, which he executed continuously and almost simultaneously, he was forced to convert his small office at Freedom House into a study, a guest lounge as well as a rest house. He would enjoy an hour’s after-lunch siesta in his Amerindian hammock inside that office.

I cannot say when he was first diagnosed as being unwell, and I never really knew until I was informed that he had suffered a “mild cardiac episode”. I knew though that when he became President of the Republic a regimen of rest away from office was implemented on Wednesdays, when he would either remain at State House or retire to his Bel Air residence.

At home Dr. Jagan worked informally on statements, speeches, articles and research papers. I would invariably assist him in those tasks. But the only time when I went to State House to review a speech, it was evident from his swollen, dark eye-sockets that he had had a hard, long night of work.

His after-lunch rest-hour then was a necessity for Dr. Jagan who would have started his day long before sunrise. However, when he came to the Office of the President, his siesta became irregular. His rest-time was constantly pushed to later in the afternoon, then at times not at all.

I believe that that was the reason for the imposition of a day-off on Wednesdays. But if frugality for him meant that time should not be squandered, it was his thoughtfulness about what his colleagues should do with their time that added novelty to his day-off.

One day our late President announced casually at Cabinet that he had started routine exercise in the National Park. Rather than using up precious office hours for scheduled monthly meetings with each of his Ministers, he thought out an innovative plan: He would invite Ministers, one at a time, to accompany him on his walk around the Park. In that way, he had explained, the Ministers would do two things simultaneously: keep their monthly appointment with him and exercise.

Like work, exercise for him, was both fun and tonic. He told us often that he exercised while reading his newspapers, or listening to the radio – his favourite pastime.

The President’s Engagement Diary had me down for a walk on Wednesday, February 12 at 5 p.m. In preparation I took my dark-blue sweat suit to my Ministry, which was on the ground floor of the Office of the President. It was the first time that I was going to the National Park for a jog. I didn’t know what to expect. I was slightly overweight, and I didn’t think I could run. What if Dr. Jagan decided to trot around the Park?

But there I was, filled with mystery and expectation, on my first outing in the Park with my “Comrade Leader”. I parked my car at the northern entrance and waited. I allowed my eyes to roam around the Park in a mental survey of the distance I would have to do. Just then I saw Central Bank official, Dr. Gobind Ganga, who had served on the Presidential Commission of Inquiry into the University of Guyana and, more recently, on an advisory team for the privatisation of the Guyana Electricity Corporation.

Ganga approached me. He said that the President wanted to have a talk with him, and that he was asked to meet him here at the Park. Poor Ganga, he didn’t know that he would have to trek and talk. I glanced at his white shirt-jac, black office pants and hard, leather shoes. I knew that he was not prepared for a walk. When I told him what to expect, he sauntered to his vehicle, and was back in a jiffy. His shirt-jac was tucked into his pants, and he was ready for any action. By then, the president’s car appeared.

If Ganga wasn’t prepared for the Park, Dr. Jagan didn’t dress for the sleek presidential car from which he had emerged. He wore the off-cream pants I had seen him wear many, many years before. Those Hungarian pants! We had bought them in the summer of 1978 when we went together on a political mission to Budapest.

I believe that our nation’s father couldn’t throw away anything, and he kept those pants together with some stitches here and there. I bet that he did the stitching himself, as he had learned tailoring in jail when he gave up wood-working after accidentally slicing off a piece of his finger.

His jailing, of course, was another matter. It was a symbolism of the conversion of Guyana into a colonial prison from which our dreams couldn’t escape for an entire generation. But it was the Hungarian pants that survived to that unforgettable day when I joined Ganga for Comrade Cheddi’s last lap around the National Park. He wore a white T-shirt with some markings on it, and a white baseball cap. I think it was from a local rice company. His track boots were unmistakably small for an aged warrior.

“Hi there!” he greeted us with those familiar two words.
“Well, how many laps are we going for?” I asked as he held my shoulder.
“Sometimes I do two, sometimes more.”
I was worried about the “more”. I didn’t want to walk by his side and let him hear my heavy breathing.

He shook Ganga’s hand and he placed himself between us. I was on his right, on the outer side. We started off leisurely on the narrow, pitched track along an avenue bordered by trees. It was “Comrade Cheddi”, as we addressed him endearingly, who freed this Park up for popular recreation during a previous government, which he then headed as Premier.

The sprawling, green landscape had been an exclusive golf club for the privileged and elite.
As we walked, Dr. Jagan concluded his business with me in two words: “Everything alright?”
I also answered dismissively, “Yes”.
I knew that that day I was to listen. It was my turn to learn.

The discussion was about privatisation in general and, more particularly, about the Guyana Electricity Corporation. Comrade Cheddi spoke about the national interest, the risk in building monopolies, the impact of privatisation on the working people and on the poor. It was a lecture in classical political economy, but his tone was hushed, and he sounded conspiratorial.
Just then Mike Brassington, the head of the Privatisation Unit, passed us. He was walking with his wife in an opposite direction. He raised his hand, and Comrade Cheddi simply nodded.
The GEC was in shambles when the PPP/Civic government took over, he reminded us. GEC has made significant progress and it must be set right before the next [1997] elections. GEC was an example of the stubbornness of the government to set things right. Therefore a privatisation model must not lose sight of the gains so far.

He wanted publicity on what improvements have been made, and the new assets that were bought with government’s own money to stop the endemic blackout, and stabilise power supply.

As we were nearing the National Park stadium, my colleague Bert Wilkinson, the local AP correspondent, hailed at us. He was playing softball, and he pointed at my bulging tummy and must have said something like “Cheddi looks far fitter than you!” We laughed and continued around the bend.

It was an afternoon of respect. Couples said “good afternoon”, children hailed “President Jagan!” and persons unbeknown to him giggled and shyly said “hello”. We passed David De Caires, the editor-in-chief of Stabroek News, walking with, I believed, a lanky PNC Parliamentarian, John De Freitas. They passed us on the right, outer edge of the track. Comrade Cheddi did not notice them.

De Caries lifted his eyes, but went past us silently. He was to look at the living face of the Guyanese leader he had cruelly criticised with predictable regularity just one more time.
That was on the second and final lap.

The conversation became more intense. Comrade Cheddi was concerned about the implications for the big and powerful industrialised states of the divestment process in Guyana. While he drew a distinction between the Canadian “social” approach and the American’s “profit bottom-line” approach to foreign investment, he held an open attitude towards privatisation.

His principle on privatisation was simple: “If we have to, we would; if we don’t, we won’t”.
He wanted care to be taken at every stage of the process, and that it must not appear that there had been any preference for companies or any notion of a raw deal for any of them. Above all, he wanted that with regards to GEC two things should be clear. Firstly, the assets of the corporation should be fairly assessed; and secondly, that any post-privatisation agreement must protect the consumers from high or arbitrary charges.

As we finished the second and final lap, the rains started to drizzle. We continued a while in the drizzle, but the drivers were bringing out umbrellas. The Guyanese leader noticed that others were walking in the rain, including a young niece, Dionne. He didn’t want to appear indiscreet. So he waved the umbrellas away and beckoned us into his car. I dived into the front seat and he and Ganga huddled in the back.

The conversation was switched to finance, and Ganga, now wearing his Bank of Guyana hat, was doing much of the talking. Comrade Cheddi was listening with deep intensity. He was asking many questions. And Ganga was explaining how excess liquidity was being mopped up, the impact on inflation of lower interest on treasury bills, and the role of the Central Bank in fiscal management.

It was a conversation that could have gone on and on, but the guards signaled to Comrade Cheddi that it was time to leave. Little did I know then that that was my last lap with our Mahatma, who was to fall mortally ill two days later.

Dr. Jagan knew that he had another appointment that afternoon, and he drove off into the hazy evening.

We had lost the sun and darkness was about to engulf us.

Police Witnesses Not Attending Court To Testify

2009-03-07T07:53:00.002-04:00

Kaieteur News - March 5, 2009

Police Commissioner Henry Greene said that the force is not going to tolerate policemen who are not going to give evidence in matters engaging the court...(click here)

Magistrate Alleges Interference By The DPP

2009-03-07T07:43:00.004-04:00

Kaieteur News - March 6, 2009

Magistrate Yohhahnseh Cave has stated that the Director of Public Prosecutions has no supervisory role in what is an exclusive judicial function of the court with regards to the granting of adjournments......(click here for rest of story)

How Secure Is The Rule Of Law In South Africa?

2009-03-07T07:23:00.002-04:00

UK Times - March5, 2009 - by Jeffrey Jowell QC

South Africa’s post-apartheid constitution, enacted in 1994, has been hailed widely as a model of modern constitutional democracy. Has its implementation matched its promise?

It certainly began well. An early judgment of the new Constitutional Court struck down an act of the new President, Nelson Mandela. Instead of launching the familiar counter-attack on “unelected judges”, Mandela graciously welcomed that no person is above the law.

The next President, Thabo Mbeki, also fell foul of the courts when his eccentric policy of refusing to authorise treatment for HIV-Aids to pregnant mothers was held to breach the right to healthcare. In general, South African courts set standards as high as any in the world and the judiciary, formerly all-white, is being transformed rapidly. The press is free and outspoken and includes some very able and critical black journalists. Programmes as robust as the BBC Today programme fill the airwaves.

All this is a far cry from the authoritarian apartheid years but there are worrying signs. The present Deputy President, when she was Speaker of the House, danced (toyi-toyied) a fellow MP into prison after he had been found guilty of defrauding Parliament. The president of the ruling African National Congress, Jacob Zuma, has been fighting a number of legal battles to head off allegations of corruption in relation to the Government’s arms dealings.

Last month the Supreme Court of Appeal held that Zuma should finally be tried. However, the ANC is seeking to have the prosecution dropped in the public interest, with insinuations of unrest if Zuma is tried, let alone found guilty. The fiery president of the ANC’s Youth League said that he would be prepared “to take up arms and kill for Zuma” and the party’s secretary-general dubbed judges “counter-revolutionaries”.

Last year Mbeki disbanded the Scorpions, a combined police and prosecutorial unit that had vigorously investigated corruption charges. He also dismissed the independent head of the National Prosecution Authority, who was pursuing corruption charges against the National Police Commissioner. Kgalema Mothlanthe, the present President, a transitional figure who will stand down in favour of Zuma if he wins the April 22 national elections, has rejected the findings of an internal inquiry that found that the prosecutor was indeed fit for office. He has decided instead to follow the proposal of a parliamentary committee that the dismissal of the prosecutor be confirmed, for the spurious reason that he was not sufficiently “sensitive to security issues”.

Then there is the strange case of Judge John Hlophe. A Cambridge PhD, Judge Hlophe taught law for a while and was then appointed a judge on the Cape Division of the High Court, of which he became Judge President in 2000. He stirred controversy, not least for a report he wrote alleging racism on the Bench and at the Bar. He cast aspersions on respected white lawyers, apparently opposing the appointment to his Bench of one of the best of them, who also possessed impeccable “struggle credentials”.

More recently it was discovered that Judge Hlophe received fees from an investment company while on the Bench and then permitted the company to sue another judge in his division. The matter was reported to the Judicial Service Commission (JSC), a body set up under the Constitution both to appoint and discipline the judiciary. The JSC, dividing largely on racial lines, refused fully to investigate the matter or to discipline Judge Hlophe.

Last year Judge Hlophe was referred to the JSC on a different charge, which has led to a bizarre series of legal manoeuvres. His accusers this time were none other than the justices of the Constitutional Court. The ground of the justices’ complaint was that Judge Hlophe had lobbied two of them not to find against Zuma. Undeterred, Judge Hlophe challenged the complaint before the Johannesburg High Court that held (dividing entirely on racial lines) that the justices had failed to give him a fair hearing before reporting the matter to the JSC. That matter is now on appeal, but meanwhile, the JSC has indicated that it will be hearing the complaint against Judge Hlophe next month.

Deeper within the system are complaints that the judgments of even the highest courts are ignored, that law enforcement officers are open to bribes and that access to justice at the lower levels is sporadic and inefficient.

It is not easy to divine whether the rule of law will win through in South Africa. There is at present an uneasy truce on the matter, while the interim President holds the ring until the election. Yet there are pressures on the ANC from the new breakaway party Congress of the People (Cope) that is standing on a rule-of-law platform. The official opposition Democratic Alliance, under its dynamic new leader, Helen Zille, is urging Zuma not to stand for president while charges against him are pending. While not acceding to those requests, Zuma has at least conceded that he will stand down as president if ever found guilty.

And there are more positive signs. In their speeches to the World Congress of Constitutional Justice in Cape Town in January, both President Motlanthe and his Minister of Justice expressed strong support for the rule of law and the independence of the judiciary. Also significant is the appointment to the latest vacancy in the Constitutional Court of the intellectually outstanding lawyer Edwin Cameron. Mr Justice Cameron’s credentials — he is white, gay, HIV-positive and independent — would not have been regarded recently as providing a ticket to high office.

Pessimistic predictions for African countries are not without foundation. There seems to be a universal tendency for new states progressively to fall into some of the worst habits of their former rulers. On the other hand, despite its recent ambivalence on the rule of law, South Africa has an obstinate way of confounding the pessimists. After all, it has a solidly democratic constitutional infrastructure and many powerful advocates of legality. It also occupies the perfect vantage point from which to view Zimbabwe and points north — and to learn from their disastrous mistakes.

The author, a QC, is Professor of Law at UCL and a practising barrister at Blackstone Chambers in the Temple

UK Lawyers Call For Single Fraud Watchdog

2009-03-02T00:03:00.001-04:00

UK Times - February 24, 2009

Senior lawyers have backed a call by Sir Ken Macdonald, the former Director of Public Prosecutions, who wrote in The Times yesterday calling for a single regulator to fight City fraudsters in order to restore confidence in banks and the financial sector.

Robert Wardle, who was a director of the Serious Fraud Office (SFO) for five years and is now a consultant with the law firm DLA Piper, said that fighting fraud had been “massively underfunded” for years, particularly within police forces. “You’ll get 3,000 people in the Department for Work and Pensions looking at overpayments and benefit fraud, and just 800 police officers devoted to dealing with fraud across the board,” he said.

Mr Wardle added that £20 million more put into fighting fraud over the past three years after a government review, which included setting up a fraud reporting centre and National Fraud Strategic Agency, was only “scratching the surface”. He said: “Fighting fraud is only a priority for one police force – City of London.”

Mr Wardle also backed Sir Ken’s call to merge the SFO’s expertise with the Financial Services Authority.

Last night the FSA said that it was to increase its wholesale staff from 70 to 90, and would also hire private practice barristers for big criminal cases. Margaret Cole, its director of enforcement, said: “It’s important for us to be in the arena and to be seen there.”

Monty Raphael, joint head of fraud and regulatory at Peters & Peters, a leading fraud litigation firms, said, however, that the “Balkanised” approach – split between authorities such as the police, the FSA and the SFO – led to confusion and inefficiency. “It is more important than ever that we have a coherent antifraud prosecution strategy that is intelligently resourced, intelligently focused and proves a real deterrent to fraudsters,” he said. However, the Government had historically regarded less expensive forms of fraud such as benefit fraud as a greater priority.

“It’s absurd that we’ve got thousands focused on various other forms of crime when white-collar crime strikes directly at the economic heart of the country,” he said. “It ruins countless, countless lives.”

As a first step, Mr Raphael said, the Government should require financial institutions to report any incidence of fraud to determine the scale of any problem. Such disclosures are currently voluntary. “The public would be aghast at the amount of fraud and would demand that something be done about it,” he said.

Keith Oliver, a senior partner at Peters & Peters, also gave a broad welcome to Sir Ken’s comments. “Integral to the effective and honest operation of the markets is the need for immediate and punitive sanctions against professionals who engage in criminal dishonesty or reckless behaviour,” he said. “The absence of such a deterrent is as destructive to market confidence as the dishonesty or breach of standards involved.”

Jeremy Cole, a fraud litigation partner at Lovells, the City firm, said Britain lagged behind the US in securing convictions for white-collar crime and in imposing adequate sentences. “In the US they perceive financial crime as a greater blight on society,” he said.

But Lord Goldsmith, QC, who was Attorney-General when Sir Ken was Director of Public Prosecutions, opposed any merger of the SFO and FSA. “This is a confusion of two different things: issues of financial regulation – laxity over City regulation or the practice of hedge funds short-selling, that kind of thing – are not the same as a criminal offence. But I do agree we need tougher regulation.”

Lord Goldsmith, who set up a full fraud review into the problems of tackling white-collar crime, added: “It is simplistic to abuse the Labour Government for not caring about fraud. Obviously there is more work to be done and the jury is out on the SFO, where it is now for the new director to make changes. But I spent a lot of time trying to bring about a different attitude to fraud and bring improvements.”

UK Times on Australian Appellate Court Judge Michael Kirby

2009-03-01T23:57:00.001-04:00

UK Times - February 19, 2009

Michael Kirby, Australia’s longest serving, most controversial and internationally best-known judge, has stepped down from the High Court of Australia, the top appellate court. As he recently said, judges “cannot escape assessment”. His own must include a singular international legacy in human rights and judicial communication, plus a fierce debate over the place of international law in Australian domestic courts.

Kirby bridles at media billings such as the great dissenter or judicial activist. The former ignores his more frequent intellectual contributions to majority judgments, the latter can imply improper incursion into the rightful province of Parliament.

But he does defend, strenuously, the right to dissent and the importance of written dissenting judicial opinions, which he cites as among the best of transparent traditions that Australia has inherited from the English system.

Kirby’s career as a judicial reformer began 35 years ago when Prime Minister Gough Whitlam recognised his unorthodox and brilliant intellect and appointed the 35-year-old as the inaugural chairman of the Australian Law Reform Commission (ALRC). When in 1996 he arrived at the High Court in Canberra, set among the deceptively peaceful Brindabella Mountains, it had been via a road less travelled; others were pursuing the traditional road from QC to judge while Kirby pioneered a consultative governance experiment in law reform.

At the start there was a great deal of hostility towards the idea, he says. Now, a generation on, the need to update the law constantly and debate issues beyond the legal profession is recognised, producing “something of a change in Australia’s legal culture”.

The body is modelled broadly on the English and Scottish Law Commissions. In 2006 Kirby delivered the inaugural memorial lecture honouring Lord Scarman, who chaired the English commission. Lord Denning was another mentor — “a very innovative judge, always searching for just solutions, lovely to students”. Kirby has tried to emulate these qualities. The ALRC tackles issues with a large social content such as tissue transplantation, breathalyser laws, privacy, even sedition . . . its consultations extended well beyond the legal community.

He also broke new ground in his dealings with the media. When appointed president of the New South Wales Court of Appeal in 1984, that modus operandi of media contact remained — so did the media attention. Such attention carries risks, he accepts, in a country that “since convict times, loves to hate ‘tall poppies’ ”. Kirby says he wished to explain and “open a conversation between Australia’s judges and the community they serve”. In all, he believes, it was useful.

He also pioneered ways to make judgments more accessible. The prose style of the Australian High Court judges, he said recently, was “often very dense” and their meaning “sometimes impenetrable”.

In his spare time he has spearheaded a galaxy of United Nations and Organisation for Economic Co-operation and Development committees on issues from data flow and privacy to freedom of information and human genome research. He became president of the International Commission of Jurists and also chaired the 1994 Malawi constitutional conference that ended that country’s single-party dictatorship. In Cambodia, after the downfall of the Khmer Rouge, he represented the UN Secretary-General in monitoring human rights after the Paris peace accords.

His career has not been unchequered: in 2002 a critical Australian senator sheltered behind Parliamentary privilege falsely to accuse him of misusing a government car to trawl for child prostitutes. The document behind the accusation was soon exposed as fake. He dismisses the “sorry” episode as immaterial in the schema of his career. But had he been more open, he says, about his own (later acknowledged) homosexuality, he might not have been so attacked.

Kirby belongs to a cohort of mid-20th-century Sydney University students drawn to student politics and writing as a prelude to global polemics. He arrived on the same day as Clive James. Geoffrey Robertson, QC, collaborated with Kirby on student affairs and later on human rights.

Robertson wants Kirby to be the first president of an Australian republic — even though the judge is a staunch monarchist, a seeming anomaly among intellectuals dismissed once by John Howard as Sydney’s café latte set. But then Indian tea is more Kirby’s style. In 1988 he joined Commonwealth judges in India who signed the Bangalore Principles on international law, meeting Judge Ruth Bader Ginsberg (later on the US Supreme Court). Both, he says, were “greatly affected by our experience there” and the thinking about the relationship between domestic and constitutional law and international law.

His reasoning in minority judgments on constitutional and human rights including those of stateless refugees has been lauded by some as creative prophecy, even as critics argue that using international law to help to interpret common law undermines sovereign democracy. But Kirby says that where there is a legal choice, judicial values become important.

Four days after retirement he has a new Sydney office with a new website. “All judges should be out there in cyberspace,” he opines — a typically impish double-entendre — coupled with a mischievous “claim to be the person who first invented the blog”. He means his prodigiously eclectic output of scholarly extrajudicial “speeches in hard copy”. Contrary to one myth these do not include a speech to senior monks at Phnom Penh on the “necessity for silence”.

Critics might say that Kirby was not infrequently to be found in cyberspace himself. In truth, his career has been marked by a determination to bring concepts of community expectations into judicial decision-making.

Justice Virginia Bell has succeeded him on the High Court. Three of its seven judges are now women. The big question is whether the perspectives on international law that Kirby brought to the court will persist.

UK Times Law Reports - Beneficial Consequences Of Statutory Disclosure

2009-03-01T17:28:00.000-04:00

Uk Times Law Reports

Court of Appeal
Published February 27, 2009
Office of Communications v Information Commissioner
Before Lord Justice Waller, Lord Justice Thomas and Lord Justice Richards
Judgment February 20, 2009

Beneficial consequences flowing from the unlawful use of disclosed information could be taken into account when balancing the public interest in disclosure of environmental information against the statutory exemption from disclosure.

The Court of Appeal so stated when allowing in part the appeal of the Office of Communications (Ofcom) against the refusal by Lord Justice Laws in the Queen’s Bench Division ([2008] EWHC 1445 (Admin)) of its appeal against a decision of the information tribunal, on September 4, 2007, upholding the order of the Information Commissioner, on September 11, 2006, to disclose information relating to the location and other details of mobile phone masts.

Miss Dinah Rose, QC and Miss Jane Collier for Ofcom; Mr Akhlaq Choudhury for the commissioner.

LORD JUSTICE RICHARDS said that it was the first occasion on which the Court of Appeal had to rule on issues arising under the Environmental Information Regulations (SI 2004 No 3391).

The Freedom of Information Act 2000 created a general right of access to information on written request made to a public authority. The 2004 Regulations contained a specific code for environmental information and such information was exempt from disclosure under the 2000 Act.

The approach to balancing the public interest in maintaining exceptions from disclosure against the public interest in disclosure under regulation 12(1)(b) was not, as the tribunal found, that each applicable exception had to be considered separately.

The correct test was to consider whether the aggregate public interest in maintaining the exceptions outweighed the public interest in favour of disclosure.

Could a benefit arising from unlawful use of the disclosed information be taken into account as an aspect of the public interest in disclosure?

Here the unlawful use was breach of the intellectual property rights of mobile network operators. Since an adverse effect on such rights was the subject of specific exception under regulation 12(5)(c), breaches of those rights had to be taken into account both in determining the application of that exception and in assessing, under regulation 12(1)(b), the public interest in maintaining the exception.

Regard must be had not just to the immediate effect of disclosure but also to its wider consequences, including subsequent use of the information disclosed.

If such use had beneficial consequences, it was implicit in the 2004 Regulations that such consequences could be taken into account on the other side of the balance as an aspect of public interest in disclosure, and the tribunal had been correct to do so.

The tribunal had been correct that public interest in the disclosure of the environmental information extended to the names of the mobile network operators.

The case would be remitted to the tribunal for reconsideration of the balancing exercise under regulation 12(1)(b).

Lord Justice Waller and Lord Justice Thomas agreed.

UK Times - Former UK DPP On Tougher Financial Regulation

2009-03-01T17:06:00.002-04:00

UK Times - February 23, 2009

Fraudulent bankers are more of a danger to society than terrorists and the failure to reassure people that their money is safe is an “absolute failure of public policy”, a former Director of Public Prosecutions says today.

Writing in The Times, Sir Ken Macdonald says that the systems for regulating markets and for prosecuting market crime have completely broken down: “If you mug someone in the street and you are caught, the chances are that you will go to prison. In recent years, mugging someone out of their savings or their pension would probably earn you a yacht.”

Sir Ken's call for tougher financial regulation in Britain and a single, powerful authority to replace the “failed” Financial Services Authority and the “struggling” Serious Fraud Office is his first big public pronouncement since leaving office. It comes as financial regulators in the United States charge Allen Stanford, the billionaire cricket impresario, with masterminding a $9.2 billion fraud and after Bernard Madoff's alleged $50 billion fraud. Scrutiny of the British banking collapse has so far been largely political rather than legal.

The British Government, meanwhile, is shelving plans for a financial court with powers to punish fraudsters with a range of criminal and civil penalties. The Times has learnt that the proposal, a key part of the Government's Fraud Review that reported in 2006, is now believed to be too expensive at a time of budget cuts.

Instead, Baroness Scotland of Asthal, the Attorney-General, will go ahead with giving Crown Courts tougher powers to punish fraudsters, including higher sentences, and a formalised system of plea bargaining, or plea negotiation. Under that system a fraudster would admit guilt and might serve time in jail, but the agreement between prosecution and defence, and approved by a judge, would avoid a full-scale trial.

In his article, Sir Ken lambasts the “liberty-sapping addictions” of the Home Office and the “paranoiac paraphernalia of national databases and ID cards”. He also attacks the rush to “bring in lots of terror law, the tougher the better”. Rather than ensuring that people's money and financial security “will not be stolen from them”, legislators wanted “criminal justice to be an auction of fake toughness”, he says.

Sir Ken has previously criticised government plans to extend the time that terrorism suspects could be held without charge beyond 28 days; and, recently, plans for increased surveillance and data retention. Beyond that, he has been careful until now not to express personal views.

“No one in Britain has any confidence that fraud in the banks will be prosecuted,” he says and questions whether legislators understand financial wrongdoing and the “wreckage it brings”.

“Do they really believe that an illiterate, mother-of-five drug mule from a village in Gambia should be serving five times the sentence of a millionaire City fraudster?”

Sir Ken calls for fewer laws on terrorism and attacking people's right to speak frankly and freely. There should be more laws to “confront the clever people who have done their best to steal our economy”. He adds: “If the Government really wants to protect people, beyond armoured-vest posturing, here is the opportunity.”

UK Times - Improper Conduct In The House Of Lords

2009-03-01T16:57:00.002-04:00

UK Times - February 26, 2009 by David Pannick QC

Last month The Sunday Times accused four peers of breaching, or being prepared to breach, the code of conduct by paid advocacy in Parliament. A House of Lords sub-committee is considering the allegations. There is a strong feeling both within and outside Parliament that if that sub-committee finds one or more of the peers guilty of improper conduct, and that verdict is upheld by the Committee on Privileges, the House of Lords must be able to impose penalties stronger than the naming and shaming of peers who are not fit for public office. So long as the House of Lords adopts a standing order expressly conferring a power to suspend or expel members, new legislation would not be required.

Section 1 of the Life Peerages Act 1958 says that a life peerage conferred by letters patent from the Queen entitles the individual “to receive writs of summons to attend the House of Lords and sit and vote therein accordingly”. Section 1(4) adds that this right does not apply where a person is “disqualified therefore by law”. According to a report by Peter Riddell in this newspaper, the Attorney-General, Baroness Scotland of Asthal, has advised the Committee on Privileges that the House cannot suspend, let alone expel, a peer unless new legislation amends the 1958 Act. On Monday Lord Bach, a minister in the Justice Department, told the House of Lords that legislation to deal specifically with such disciplinary matters may be appropriate.

A peer who is suspended or expelled would have no legal claim because it is well established that the courts will not entertain applications concerning the conduct of Parliament. But Parliament would, nevertheless, wish to comply with proper legal standards.

The law relating to clubs states that a member may be expelled only where there is an express power to do so. Sir George Jessel, Master of the Rolls, so held in 1879, and the Court of Appeal agreed, in relation to the expulsion of a Colonel Dawkins from the Travellers’ Club. In 1970 Mr Justice Megarry said that the same requirement for an express provision applies to suspension of a member of a club. So the standing orders of the House of Lords would need to be amended to confer an express power to suspend or expel.

Would the adoption of such a standing order infringe the constitutional rights of peers? There are strong arguments why Section 1 of the 1958 Act does not confer an immunity. A member of the House of Commons has a constitutional right to represent constituents. But no one suggests that the undisputed power of the House of Commons to expel, suspend or impose other disciplinary sanctions on errant members breaches that right. The true position, in the Lords as in the Commons, is that the constitutional right to attend confers no immunity against disciplinary sanctions imposed in accordance with the procedures of the appropriate House.

The argument for an absolute constitutional right to attend also proves too much. It would prevent the removal from the House of a Member who disrupted proceedings. In 1937 the Court of Appeal accepted that the chairman of the Fire Brigade and Cemetery Committee of the Feltham Urban District Council had power under standing orders to eject a councillor from the council chamber after he frequently interrupted the meeting and shouted out “liar” when a vote of thanks was being passed. It would be extraordinary if the House of Lords lacked a similar power.

Could the House of Lords now adopt a new standing order to allow for the expulsion or suspension of any peer found to have acted improperly in the past? Such retroactive powers would not offend against the European Convention on Human Rights. The European Court held in 1991 that disciplinary proceedings against a Member of a Parliament for breaches of privilege “relate to the internal regulation and orderly functioning of the House” and so are not “criminal” for the purposes of the convention. In any event, it is well established in the case law of the European Court that disciplinary sanctions, such as the removal of a licence to practise, imposed by a regulatory body on members of a profession are not “criminal” in nature.

The Sunday Times claims that one of the peers under investigation, Lord Taylor of Blackburn, told a reporter purporting to be a potential client: “You’ve got to whet my appetite to get me on board.” If, after proper inquiries, any of the four peers are found to have breached the code of conduct, that will undoubtedly “whet the appetites” of many other peers for their removal from the House of Lords, without waiting for new legislation.

The author is a practising barrister at Blackstone Chambers in the Temple, a Fellow of All Souls College, Oxford, and a crossbench peer in the House of Lords