Dear Editor,
Since the decision of Chief Justice (ag) Chang on March 9, 2012 in which he granted orders of certiorari and prohibition, in the process staying the recommendation to charge Commissioner Greene for rape, the press has been inundated by social and political commentators attacking Justice Chang personally more than the decision he handed down. This is unacceptable and ought not to be permitted to continue.
Stabroek News has chosen to reprint yesterday an article by Dana Seetahal, SC from Trinidad and Tobago first published in Trinidad and followed up today with their own commentary using Ms Seetahal‘s opinion and that of politician-lawyer, Ms Priya Manickchand as though it reflects a Government of Guyana position.
It is well known that Ms Seetahal has an axe to grind as Chief Justice Chang had criticized her textbook Commonwealth Caribbean Criminal Practice and Procedure, so much so that she has had to correct her publication that was being marketed as the most seminal work on criminal law practice and procedure in the Caribbean.
Aside from the polemics it must first be remembered that judicial decisions are based on the evidence and the application of the relevant principles of law. Whether a judicial decision is right or wrong does not at all depend on the level of popular support it receives. A judicial decision may be wrong even though it receives a high level of popular acceptance and may be correct even though it receives a low level of popular acceptance. Moreover, the opinions of members of the general public cannot render a judicial decision flawed. Only an appellate court of law or a superior court of record can set it aside, and only on proper legal grounds, not on public sentiment. Not even a referendum can render invalid a judicial decision.
Secondly, judges in Guyana are not elected to office. They have no obligation to render decisions on the basis of the level of popular support their decisions may be likely to receive. Their role as judges is to make decisions on the basis of their objective and dispassionate assessment of the evidence and the application of the relevant law even if the heavens fall.
The question must therefore be asked as to why there is so much effort being made in the public domain by certain social and political organizations to disparage the decision of Justice Chang in the Henry Greene application. To me the answer is obvious. These organizations have their own extra-legal agenda in society to which the decision of Justice Chang seems to run counter. They are not merely seeking to criticize the decision but to solicit popular support for their criticism of the decision as if the legal validity of the decision rests on the result of a referendum. They must know that they are merely making empty noises by beating their drums in public and doing nothing more than undermining public confidence in the court system and in the rule of law.
Of course, justice is not a cloistered virtue and judicial decisions can be the subject of critical constructive comments. But comments which are not constructive and which have the tendency of bringing the court or the administrations of justice into disrepute are impermissible. When public confidence in the courts is eroded, the fountain of justice dries up and those who thirst for justice will have nowhere to go to quench their thirst. It is a recipe for anarchy and the rule of the mob. Those who are adverse to the decision of Justice Chang can publicly make critical comments of his decision if such comments are constructive. But they are not free to lobby for public support for their position. They can comment without lobbying for public support.
Thirdly, a judicial decision cannot be made ‘a whipping horse’ for social or political agendas by social and political organizations. Some have gone so far as to launch ad hominem attacks on the competence and ability of Justice Chang to hold judicial office. This is wrong and cannot be condoned.
Fourthly, Justice Chang may not be an elegant judge. Far from being a timorous soul, he is bold, but cautiously bold. As a judge I am sure he must have his shortcomings in judicial defiance, but none can challenge his legal competence. He is a judge of substance though not necessarily of form. He is ordinary but yet far from ordinary. The decisions which will provoke debates will come from him. His decisions will invite comments. But comments must be kept within proper limits and not be used as a whipping horse to achieve political mileage in the public domain.
Finally, based on the statements from Justice Chang himself he has signalled that he does not need to occupy the post of Chief Justice or any other judicial office. He quite justifiably feels that damage has been done to him as a judge and to his office by irresponsible commentators in the public domain. If he resigns as he has threatened to do his detractors may rejoice, but the nation will suffer. To the best of my knowledge, he never applied or asked for any judicial office, it was thrust upon him. He was requested by our leaders (on both sides of the political divide) to perform the functions of Chief Justice. He reluctantly acquiesced. So to resign would not be a big decision for him. If you know Justice Chang, you know that he does not give a darn about holding public office. Years ago, he resigned as the acting Director of Public Prosecutions. The nation lost. I bet the nation will lose again.
Was it not Justice Chang who, some time ago, chaired the Disciplined Forces Commission which produced a report which met the approval of all the political parties in the National Assembly? How could we allow the political and social issues to becloud a proper assessment of the legal value of the decision of Justice Chang?
He is our nation’s youngest Senior Counsel. He is the only silk who adorns the judiciary and is the most prolific producer of written decisions in recent times. His work output is unrivalled.
Rather than reacting by beating drums for political mileage, the noise-makers should have taken the time to read, understand and appreciate the decision before jumping headfirst into making rash pronouncements.
Yours faithfully,
Jerome Khan
Attorney-at-law
Editor’s note
Stabroek News at no time has suggested in any of our reports of Ms Priya Manickchand’s comments on the Henry Greene issue that these reflected a Government of Guyana position.
