Dear Editor,
I have followed the letters between Senior Counsel Mr Rex McKay (SN Oct 31 and November 11) and the Attorney General Mr Anil Nandlall (SN Nov 4 and 17). In summary it appears from the correspondence that it began when, in articles in the Guyana Times and the Guyana Chronicle, the Attorney General took issue with an “Order” of the Honour-able Justice George, which was initially interpreted as a directive prohibiting a local newspaper from publishing matters regarding Guyana Stores Limited including those matters which are already in the public domain. Mr Nandlall contended that the Judge “misused or abused the sub judice principle in making the Order,” citing various decisions and cases from other countries.
Both in the articles and in his two letters, Mr Nandlall has cited various authorities in support of his misguided opinion that he is the protector of the public interest. In responding to Mr Nandlall’s first letter, Mr McKay also reviewed English case law on the matter in support of the Judge and to suggest to the Attorney General that he give an apology to the Judge. In clarifying his position the Attorney General stated that his “focus” was the Judge’s Order banning publication of matters from the Annual Reports of a public company.
I am not aware that there is a written order that can be perused or whether indeed what the judge said officials of the newspaper constituted an Order, advice, recommendation, guidance or admonition.
Interestingly, both Mr. McKay and Mr Nandalall came up with the same principal case, Wallersteiner v Moir, in support of their positions. In response to the Attorney General, Senior Counsel went as far back to a gentleman called Lord Hardwick who in 1742 had something to say that Mr McKay believes is apparently still relevant two hundred and seventy-one years later. Of course, no argument between English trained lawyers can ever be conducted without them referring to something that Lord Denning may have said many years ago in a completely different set of circumstances in a foreign country.
The good Lord has achieved something close to deification, but this pathological obsession with Denning, (who incidentally did not carry the day in Wallersteiner v Moir, and was in a minority), by Hardwick and others who constantly quote him from their previous decisions are all unnecessary in the Guyana context. The detailed discussion of Denning’s judgement in the Times case is also irrelevant.
In the AG’s second letter, we now have to read about the decisions of Lord Wilberforce, Lord Westbury, Lord Diplock, Denning (again), a Belizean judge and our own Madame Justice Bernard. It is all so boring and unnecessary.
Lord Scarman has reminded everyone that in a sovereign, independent UK, only UK decisions apply in determining the rule in English law. This is a smart observation. We too must say that the Guyana Constitution matters, not English decisions, not European decisions and not the so-called English common law.
Here we have, luckily, a written constitution that is the supreme law and is readily accessible and readable in English. Yet, unbelievably, neither the Attorney General nor Senior Counsel in his October 31 letter consulted it to deal with the issue under discussion, viz, the freedom of expression, the rights of the media particularly when reporting on a matter that is before the court – the so called sub judice principle ‒ although their earlier letters contained thousands of words.
Senior Counsel in his second letter did seek to correct this and referred to and explained Article 146 of the Guyana Constitution. However he omitted that Article 146 (3) also provides that “freedom of expression does not relate to expressions in whatever form, capable of exciting hostility or ill-will against any person or class of persons.” Clearly in this case there is a lot of hostility and ill will. Astoundingly, Mr Nandlall claims to be the defender of a document whose content he completely ignores! This makes no sense.
The language of the constitution here is quite clear; to determine whether the Honourable Judge acted within the constitution to make an order colloquially called a “gag order,” one needs to deal only with the Guyana Constitution. There is absolutely no need for Denning, Hardwick or any other English Lord or case. Therefore the sooner the lawyers stop looking to Denning, Hardwick and company for guidance and start studying the Guyana Constitution for guidance, the better we would all be; no need also to consult European court decisions for guidance. The Honourable Judge therefore in dealing with an alleged complaint about the behaviour of one party in the matter before her must be guided by the Constitution and nothing else.
I wish now to place the conduct of the Guyana Times newspaper in a wider context. What we are witnessing is an all-out, vicious, no holds barred war between two factions of businessmen – the Guyanese nouveau niche – with Messrs Lall and Yassin on one side and Messrs Jagdeo and Ramroop on the other, each side owning and using its media outlet as their principal weapon. Actually, each side has shown little regard for the constitution and the fundamental freedoms enshrined therein and have abused those freedoms on a daily basis in the pursuit of their objectives.
The courts and the judges have to be careful not to be drawn into this vicious war that has no winners and that may soon involve more than the written words in newspapers. The courts must understand the cultural, social, economic and political underpinnings of this war for supremacy and hegemony and stay scrupulously with the constitution. What we have here is not an issue of freedom of expression per se, but in the guise of investigative journalism daily doses of ‘cuss-down,’ character assassination and some legitimate exposure. Of course, as an unintended feature of this war, society gets a better understanding of the goings on with this new class and that may be a good thing.
There is no trial by newspaper here, that’s what makes Denning, Hardwick and the others irrelevant. This is use of capital to prosecute a nasty war. Nothing else! We cannot see only a mere legal principal involved here. The issues are much wider. In this situation, it is not the sub judice principle we are dealing with but rather the behaviour of a sub-culture by the adversaries. Even though they have shown no regard for the constitution, the Judge has the obligation to ensure a fair trial while allowing freedom of expression subject to the expressed limitations. In doing so, the Judge can make such orders as are deemed necessary to ensure this.
Fortunately all the parties are sufficiently well endowed financially to challenge any or all such Orders in a higher court, but the Attorney General and political parties must resist the urge to pronounce on the Judge’s decisions. Let the litigants go where they have to go if they are unhappy, but certainly not to the politicians nor the political parties. That is why the AG’s intervention is inappropriate and so too is a press statement emanating from his party on the subject.
Mr Nandlall insists that his role is that of some kind of protector and defender, but he should spend some time consulting Article 112 of the Guyana Constitution. There he would see that the AG’s role is set out in eight words, nothing else. How difficult is it for him to understand eight words? Which one of them does he not understand? No need for Belize, Wilberforce and other irrelevant nonsense.
It is a good thing that both Senior and Junior Counsel felt it useful to share their views on the so-called sub judice principle; they should encourage others, including the Bar Association, to do the same. Over the years Guyana has produced great legal minds like Shahabuddeen, Ramsohoye, Ramphal, Fred Wills, JOF Haynes, the Luckhoos, McKay, Massiah and others, who can hold their own against anyone in the United Kingdom. However, within recent times lawyers are reluctant to enter into public discussions on legal issues for many reasons.
Some do not engage because no fees are involved; some are fearful of the consequences of appearing before the same judges whose decisions they need to discuss. Some are constrained by their political affiliations, and some are just not interested in this type of activity. The rest are plain lazy and/or intellectually incapable or intimidated. But with some encouragement there may be a few willing to share their views.
Yours faithfully,
Raymond Gaskin
