– say it could be refined
Amid suggestions that the Bharrat Jagdeo administration could move to abolish the sub-judice rule, which limits the level of discussion on a matter before the courts, local lawyers are arguing that the law must remain, but be refined to cater for today’s realities.
The sub-judice rule is one of many conventions passed down from the British, which Guyana has upheld over the years.
The issue of abolishing the rule came into focus last week when Head of the Presidential Secretariat, Dr Roger Luncheon, was asked to comment on the Oliver Hinckson’s charges, mindful of the sub-judice rule.
Luncheon told reporters that there were issues of importance that would engage the attention of the administration and the public, and given a general shift worldwide to speak more freely, the administration would not be beyond tabling legislation to abolish the old approach of not being able to say anything. The Cabinet Secretary noted that there were persons who would like the status quo of not being able to comment on matters before the courts to remain, but he felt that this should be abandoned.
Notwithstanding Luncheon’s comments, the rule is still observed in most Commonwealth countries and in the case of Britain, Canada, New Zealand and Australia it has been refined to guide the discourse of parliamentarians.
Fatal mistake
In an interview with Stabroek News on Wednesday, President of the Guyana Bar Association (GBA) Kashir Khan said the rule of sub judice should not be done away with, but rather codified and refined. He said at present the rule was not in the law books, but it was one of those conventions that had been handed down from the British. Khan argued that over the years most of the countries in the Commonwealth have retained the law, while some have upgraded it. The lawyer said it would be a fatal mistake for the administration to get rid of the rule, noting that it has withstood the test of time and helped to maintain the standard by which citizens view the courts. “We should pass something setting out clear and unambiguous rules as to what could be said and how… there is need for the rule to be refined not thrown out,” the GBA president declared.
On the dangers of repealing the rule, Khan said it could have the real effect of bringing the courts and the entire judicial process into disrepute. He said the rule serves an important role in the administration of justice and as it has withstood all these years it must be retained. The GBA president said that at present, the rule permits limited discussion and reportage of facts on cases before the courts. He said for the most part politicians as well as ordinary citizens had been complying and saw no reason why it should be abandoned. “We would be opening the floodgates of abuse on the judicial process and the very respect citizens have for the courts would be diminished,” Khan argued. According to the lawyer, the rule had been in force to ensure that no one prejudiced the outcome of matters before the courts or tried to influence the judge or magistrate.
Right to
free speech
Attorney-at-law Anil Nandlall, who along with another lawyer, was accused of contempt during the Mark Benschop treason trial after discussing it on a television show, told Stabroek News that while he did not believe the law should be repealed, there was no rule preventing someone from discussing a case before the court in the media. In fact, Nandlall said that the right to discuss a matter before the courts without prejudicing the outcome obtains throughout the English-speaking Commonwealth. Nandlall, who is also a PPP/C MP, cited Article 146 of the Consti-tution of Guyana, which guarantees to every citizen the right to freedom of expression, which includes the right to free speech, the right to hold opinions and the freedom to receive and impart ideas without interference. He said apart from life itself, he did not conceive a more fundamental of the inalienable rights of a civil society than the right to express oneself. Nandlall asserted that the importance that a democratic society accords to the concept of free expression was eloquently expressed by Justice Beg in the Indian case of Bennet Coleman & Co Ltd. -v- Union of India [1973] AIR 106 at 149. To underscore his point, he quoted Justice Beg as follows: “Political philosophers and historians have taught us that intellectual advances made by our civilisation would have been impossible without freedom of speech and expression. At any rate, political democracy is based on the assumption that such freedom must be jealously guarded. Voltaire expressed a democrat’s faith when he told an adversary in argument ‘I do not agree with a word you say, but I will defend to death your right to say it’. Champions of human freedom of thought and expression, throughout the ages have realised that intellectual paralysis creeps over a society which denies, in however subtle form due freedom of thought and expression to its members.”
On the notion of freedom of expression -vs- sub judice, Nandlall said this apparent antinomy arose in the AG -v- Times Newspapers Ltd [1974] AC 273. In this case, he said, the Times was about to publish certain articles highlighting the plight of mothers who, during pregnancy had used a drug, which resulted in their children being born with certain deformities. These parents, he said, had instituted legal proceedings for compensation and their cases were pending for approximately 12 years. The Attorney General sought and obtained an injunction restraining the publication of these articles on the grounds, inter alia, that the publications would prejudice the pending litigation. The newspaper appealed and the Court of Appeal ruled in favour of the newspaper, holding that the public interest and the freedom of the press to make fair comment outweighed the private interests of the parties.
Nandlall said it was undoubtedly law that when litigation was pending or actively before the court, no one should comment on it in such a way that there was a real or substantial danger of prejudice to the trial or action, for instance by influencing the judge, the jurors, or the witnesses, or even by prejudicing mankind in general against a party. He further noted, that even if the persons making the comment honestly believed it to be true, it was still contempt of court if the comment prejudged the truth before it was ascertained in the proceedings.
“To that rule about fair trial, there is this further rule bringing pressure to bear on a party.” Nandlall said no one shall, by misrepresentation or otherwise bring unfair pressure to bear on one of the parties to a cause so as to force that person to drop his complaint, or to give up his defence, or to come to a settlement on terms, which he would not otherwise have been prepared to entertain. He said that law should be maintained in its full integrity.
“We must not allow trial by newspapers or trial by television or trial by any medium other than the courts of law. But in so stating the law, I would emphasise that it applies only when litigation is pending and is actively in suit before the court.”
Important concept
Khemraj Ramjattan, co-leader of the Alliance For Change and also a practicing attorney, dismissed Luncheon’s comments as idiocy, adding that the Cabinet Secretary was part of an administration, which had no respect for the rule of law. According to Ramjattan, the sub-judice principle in matters of adjudication was like habeas corpus, which strengthens civil liberty. He said only an administration that was dictatorial and had no respect for the independence of the courts would advocate a ban on such a rule. “What Luncheon has said is absolute nonsense,” Ramjattan charged, noting that the HPS does not understand the underpinnings of the sub-judice principle, which, he said, constituted an important concept in the rule of law. Ramjattan said the basis of the principle is to ensure no undue pressure is put on the adjudication of matters in courts so as to influence the outcome.
“If we were to follow Luncheon and his government everybody would be free to accuse judges and make statements on cases that are before the courts,” Ramjattan said. He added that the press would also be able to prejudice the outcome of cases by influencing jurors with their publications. Ramjattan said maybe Luncheon wanted to see an end to independent adjudication, which was why he made such a suggestion.
The lawyer vowed that any attempt to change the rule would be strenuously opposed, warning that he would not stand idly by to see the administration disregard the rule of law.
