Perhaps because he was a lawyer, when President Forbes Burnham was suspected of using all kinds of machinations, including peoples’ tax records, to gain their compliance, he loved to – improperly I believe – import the clean hands doctrine into politics: he who sought to criticize and challenge him or the state must come with clean hands. In other words, if you are accusing me of moral laxity you should be a morally upright person, for just as you are seeking to expose my amorality, I have a right to expose yours. You cannot accuse me of corruption, behave in a corrupt fashion yourself and hope to get off scot free.
Like many, I am attracted to the clean hands doctrine, for it speaks to a not unfamiliar kind of morality: take the beam out of your own eye before pointing out that of others; if you live in glass houses don’t throw stones; an eye for an eye, a tooth for a tooth; du fu du nah obeah, etc.
Echoes of this contention are being heard again in discourses regarding issues in the media in relation to the Speaker of the National Assembly, Mr. Raphael Trotman, in which he is accused of abusing an individual when he was thirteen years of age, and that involving Glenn Lall, the owner of the Kaieteur News, and the Commissioner-General of the Guyana Revenue Authority, Mr. Khurshid Sattaur. The former is accused of illegal dealing involving the importation of two Lexus motor cars and the latter with leaking information intended to damage Kaieteur News, which has been a thorn in the side of the regime.
05Regardless of whether these persons are guilty of the act of which they are accused, there is a substantial public belief that the government was responsible for at least placing the Trotman issue in the public domain and is seeking to use the motor car issue to muzzle the Kaieteur News. Of course, the statement by the General Secretary of the PPP, Mr. Clement Rohee, that he intends to expose the skeletons of certain opposition politicians, has only served to reinforce these beliefs.
The legal maxim that Burnham sought to apply to politics comes from the law of equity, which claims to suffer no injustice; will consider the circumstances of each case and the individuals concerned and devise a just remedy. Perhaps because of my tendency to believe that judicial decisions should always be just, forgetting that equity does not replace or change the law but only supplement it, I am wrongfully prone to recommend an appeal to equity.
“He who comes to equity must come with clean hands” seeks to prevent a person who has behaved amorally from getting legal relief, matters not how unfairly she was treated by the adversary. “It does not disapprove only of illegal acts but will deny relief for intentional bad conduct that, as a matter of public policy, ought to be discouraged. The bad conduct that is condemned by the clean hands doctrine must be a part of the transaction that is the subject of the lawsuit. It is not necessary that it actually have hurt the other party. Equity will always decline relief in cases in which both parties have schemed to circumvent the law.” (http://legal-dictionary.thefreedictionary.com)
I believe that those in government who seek to rely on this doctrine know that justice is not being served when they attempt to use it for political purposes. That is why it is rarely utilized in public discourses. In my view to attempt to use the clean hands doctrine in this manner is unjust, anti-democratic and should be given short shrift.
Firstly, a government, with its control of the security apparatus, is ideally placed to fortuitously or deliberately acquire information about our personal and public lives. Since most people have some skeletons they would prefer to remain in their closets, even to threaten the use of this kind of information by the state, and particularly by a minister responsible for the security sector, must be anti-democratic and unjust.
It is anti-democratic, for although it might not, in any general manner, be able to prevent people from utilizing a secret ballot, it can certainly prevent them from fully participating in the political process and letting their voices be publicly heard, lest their baggage is emptied on the street. Any action that deliberately seeks to intimidate citizens in this manner is unjust.
Secondly, although this point is sometimes missed, when these threats are made they are usually not made in relation to the security of the state as such but in relation to the security of tenure of a political party or individuals in office. It must be doubly unjust to use information gathered in relation to one’s state positioning to subvert the participation of others in an effort to keep one’s side in government.
Thirdly, a government is not released from its own wrongdoing by exposing that of others. Indeed, as I have noted elsewhere: “Where there is a widespread perception of corruption (as there is in Guyana) it usually means that the political process itself is widely viewed as fundamentally corrupted; … [for it] is the national political process that must lead the fight against corruption (‘When corruption has become structural it cannot be removed by normal managerial tools” SN: 19/12/2012).”
In this context, the government is substantially responsible for much of the corruption it finds in the public sphere. Thus we must reject the regime’s efforts to delegitimize others in this manner while focusing our attention upon the specific charges it has manipulated into the public arena.
While we may not be able to dismiss the fact that the law may have been broken, both the clean hands doctrine and another associated principle of equity “he who seeks equity must do equity,” suggests that we should refuse to aid and generally condemn anyone whose dirty tricks/hands would deliberately have led to the predicament of others.
henryjeffrey@yahoo.com
