Dear Editor,
“We the Guyanese people, proud heirs of the indomitable will of our forbearers, in a spirit of conciliation and cooperation, proclaim this constitution in order to:
“Safeguard and build on the rich heritage won through tireless struggle, bequeathed us by our forebears:
“Affirm our sovereignty, our independence and our indissolubility;
Forge a system of governance that promotes concerted effort and broad-based participation in a national decision-making in order to develop a viable economy and a harmonious community based on democratic values, social justice, fundamental human rights, and the rule of law.” (Preamble to the Guyana Constitution)
It is more a heritage of lawlessness, social injustice and arbitrariness which has been evident in the recent tragedy in Linden. Only time will permit a more objective discussion on the incidents in Linden; at this stage the Guyana Bar Association seeks to remind the public of the importance of the Rule of Law in our interaction with each other and with the Police Force. Finger-pointing will continue; it is a political necessity. But if the Rule of Law had been observed by all participants, there would have been and would be no tragedy.
Article 40 of the Constitution provides that “Every person in Guyana is entitled to… (c) freedom of conscience, of expression and of assembly and association…“
This right is not carte blanche permission to congregate and disrupt. It is sometimes necessary to obtain a permit to stage a public protest. In addition, the protest must at no time cause a public nuisance, private trespass, or obstruction of public highways. It is not relevant whether the protest is just; an unjust cause is equally entitled to the constitutional right to express itself. But the voice of that expression must not interfere with rights of others by trespassing, obstructing or causing nuisance. If the protest crosses that line, there is a breakdown in the rule of law.
Article 138 of the Constitution provides that, “No person shall be deprived of his life intentionally save in execution of the sentence of a court…(or) (a) for the defence of any person from violence or for the defence of property; (b) In order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) For the purpose of suppressing a riot, insurrection, or mutiny; or (d) In order to prevent the commission by that person of a criminal offence…”
These exceptions do not provide carte blanche licence to kill. There must be what the legal scholars call proportionality. If there is an immediate threat to life, or an immediate danger of escalation to widespread violence, deadly force may become necessary. But this deadly force must be the only available means of accomplishing the permitted goal; it must be necessary.
The use of lethal force by the state is to be avoided and when resorted to, regretted. In Fundamental Rights in Commonwealth Caribbean Constitu-tions, Demerieux states, “A high incidence of police killings in any society must indicate a problem in the political system and thereafter, one in the system of law and order. For whatever the circumstances of these or indeed ‘private’ killings, the creation and execution of law and order policies is itself part of the business of the political system and of the government at any given time.”
When citizens are harmed by a public breakdown in the Rule of Law, the authorities have an obligation to ensure that due enquiry is made into the circumstances in a timely manner. When the state fails to act on that obligation, it encourages the decline of the Rule of Law – the root of its authority to govern the people. The law provides procedures where lethal force has possibly been used by an arm of the state for an immediate investigation to explore publicly the circumstances. The Guyana Bar Association therefore lends its voice to the demands for immediate inquiry into the circumstances which caused injury and loss of life on July 18, 2012.
The rule of law is an essential tenet in a peaceful and democratic country and the citizens of our country. As Hobbes observed four hundred years ago, when the Rule of Law breaks down, life becomes nasty, brutish and short.
Yours faithfully,
Mohamed Gamal Khan
President
Guyana Bar Association
