When Guyanese intellectuals come down from ”the mount” to pronounce, they often do so in fine style. Although their accomplishments make us proud, we worry about the judgment they exercise in picking the battles to publically fight. Two of them have recently sought to defend the indefensible with published articles displaying varying degrees of skill in the art of written masturbation, conflation of issues and convoluted logic while attempting to come to Henry Greene’s defense.
Adam Harris and Wrickford Dalgetty recently authored publications which were woefully short on facts, logic and judgment in choosing to defend the embattled Police Commissioner Henry Greene; who has been accused of raping a young woman who came to him for help in his capacity as Chief of Police. Their vigorous defense also included a circling of the wagons around the compromised Acting CJ Ian Chang whose dealings with the underworld are legendary and often whispered among those in the legal fraternity in Guyana.
Legally speaking
There is extensive case law reviewing applications for prohibition of prosecution. These have; to a large degree been discouraged, primarily on the basis that an applicant’s grievance can be accommodated at the Court of trial. Courts have ruled inter alia that for an applicant to succeed in having a prosecution prohibited, an applicant must do more than merely invoke a remote, fanciful or theoretical possibility that exculpatory evidence at one time existed. He or she must establish a real risk of an unfair trial.
The decision whether to prosecute in an individual case lies at the very heart of the prosecutorial function. The decision can have enormous consequences for the accused person, the injured party and society at large. In most functioning democracies, the question of whether to prosecute an individual case is a matter for the DPP’s discretion and, evolving law and constitutional arrangements have provided the DPP with partial immunity from judicial review. Some Courts have concluded that a “special protection” attaches to the DPP’s decision to prosecute or not prosecute. We are thus forced to surmise the real basis for Chang’s decision to proceed with this obtuse judicial excursion.
In defending Chang’s ill-advised ruling, Dalgetty was so sure that, “Mr. Greene would be exonerated in a pre-trial court of law – a totally different construction from the court of public opinion and emotion” that he made his case to the Guyanese public from his perch on high without regard to precedent, facts or logic or any empathy or understanding for the plight of poor and abused women in Guyana.
Sadly our intellectual mounted a construction that was hollow, and without foundation in law. We will say without reservation that we are not aware that Mr. Dalgetty is a legal practitioner and a legitimate commentator on matters legal but since he was confident in his pronouncement which was widely distributed in Guyana, we are forced to address the matter in kind, in order to clear up any potential murkiness created by Mr. Dalgetty’s muddy thrashing and swirling in the sea of law in Guyana.
It is important to note that we are not making the case that judicial review, in some exceptional situations, is not permissible but precedent is clear about what these situations should be. More compelling, however is the public policy that clearly frowns on judicial review in this regard.
Public Policy
In looking at the underpinning public policy that serves to buttress this special protection and immunity of the DPP, there are four fundamental arguments:
- The constitutionally -enshrined separation of powers – Advocates of this view believe that the separation of powers doctrine generally prevents judicial interference with a prosecutor’s broad discretion to initiate and conduct criminal prosecutions.
- The limit of court resources – The argument that prosecutorial and judicial resources stretches beyond acceptable limits if frequent judicial review of charging decisions are allowed.
- The facilitation of legal enforcement – This policy argument is what some commentators refer to as the “chilling effect of legal enforcement justification”.
- Unnecessary disclosure of law enforcement strategies – this policy objection militating against judicial intervention in the idea of close judicial scrutiny of a prosecutorial decision may reveal law enforcement strategies thus undermining effective crime control.
The compelling public policy that frowns on this review is significant and thus the decision to proceed in this direction raises fundamental questions with respect to Chang’s motivation to ignore well established public policy arguments and points to serious questions as to his decision to flout this public policy framework in his haste to please his political masters.
Henry Greene’s established connection to the drug trade and Chang’s alleged connection to Simels and others in the Roger Khan network create a palpable notion that this ruling and the CJ’s decision to entertain this hearing have less to do with the established legal justifications for review and more with other overarching relationships well outside of the purview of the current Chief Justice. This review was not necessary as it is an established fact that a trial judge maintains at all times, the duty to ensure due process and a fair trial. Greene of all persons should have had the courage to demonstrate his confidence in a legal system of which he is an integral part and not resort to this questionable process to tarnish the scales of justice.
It is thus our contention that Dalgetty’s foray into this rather important legal matter seems to be guided solely by the self-adoration one may derive by aligning one’s view with a putative legal luminary such as Chang. The dilemma for Dalgetty and Harris and others who seek to buttress this joke of a result is that this legal result seems to be tainted by political expediency and lacks the requisite scholarly underpinning to withstand analytical scrutiny.
Lacks Scholarly underpinning
Indeed, Chang’s rush to conflate the Strauss Kahn case with this matter points to the desperation implicit in this decision and collapses Chang’s status to one of a jurisprudential “pork-knocker” rather than the scholarly pedestal which he so desperately craves.
A breakdown of Dalgetty’s case
Dalgetty asserts that, “A trier of fact must rely on circumstantial evidence……” . The sad truth is that the sum result of this travesty of justice it that Chang subverted the legal process by denying a process in which a trier of fact could reflect on and examine the evidence in the case. Surely, Chang could not be considered as a trier of fact in this instance as he has excluded the victim’s participation in the process…”
Dalgetty suggests also that “circumstantial evidence must be buttressed by the applications of inference and reasonableness based on the human experience”…… We believe that by subverting the process and denying the victim her day in court, this process has been usurped in its entirety by allowing the CJ to rule on this matter devoid of the established legal process for examining/testing the credibility of the instant claims. In addition, Chang’s lewd and shockingly perverse obsession with the victim’s orgasms and her inability to provide for her children demonstrated a new low in Guyana’s legal jurisprudence.
The people must intervene to remove bias from the judical system
Brutalfacts views Chang’s actions as dangerous and a subversion of the rule of law. His was a sloppy, yet overreaching attempt to move from, what in theory is that of a role of neutral /impartial actor, to that of a burdened advocate, resulting in a further tarnishing of the scale of justice in Guyana, and Guyanese citizens should find this unacceptable.
We maintain that this decision just will not stand. It is bad law and it is bad for Guyana! It defies judicial logic, precedent and smacks of political interference and mischief. The citizens of Guyana must not allow this travesty. In protest and in the courts, we must return democracy to Guyana and we must return judicial independence to the people of Guyana. We must all say in one voice that the PPPC government will no longer be permitted to use the courts to exact punishment on its enemies or to exclude friends from the judicial process which all Guyanese citizens have to endure.