Supreme Court of Judicature (Appeal) (Amendment) Bill3810 07 Feb, 2013
Mr. B. Williams: The Bill is about twenty years too late. We have always been saying that we need to have judicial review and we need to have legislative review in Guyana on an ongoing basis. There are many anomalies in the law and really it did not take the late Henry Greene’s matter to precipitate it. I think it took the Dataram’s case to precipitate the move on the part of the Government. Justice of Appeal George, as he then was, in the case of Zaman Ali, had made a recommendation since 1990. But, as practitioners, we came into contact with it pretty early.
I think this will explain it very simply: If we take the dichotomy between an offence... John Jones is picked up by Bourda Market and charged by the police with robbery or larceny. He is tried and convicted. When he is convicted he could appeal that decision. In other words, he has a right of appeal. Put that aside.
Deal with the other situation: Joselyn Jones is picked up by the black clothes squad outside of Stabroek Market. He disappears. He is not seen again and so a habeas corpus is applied for in the High Court. The Commissioner of Police comes and he says that he cannot give any explanation because the records do not show, and the like, but the family and the people who saw the police came into custody are insisting that he has been held and taken into custody by the police. The matter is heard before a High Court judge and the High Court judge, in light of the testimony, dismisses the application for habeas corpus on the ground that the police are saying that they cannot produce the body of Joselyn Jones. In that scenario, we cannot appeal and that was the grave injustice to see the mother of Joselyn Jones crying on the floor of the court room and the family wailing, but there was absolutely nothing the lawyer could have done to assuage them because the lawyer cannot appeal.
It is the same thing with bail. If a bail petition is made before the High Court judge and it is unsuccessful, the lawyer could not appeal to the Court of Appeal or any higher court because it was deemed to be in a criminal cause or matter. I would not talk about how that matter disturbed me. I had done the research my learned friend just indicated in the early instance of his presentation. That was the injustice that we needed to rectify and it took some time. It had to take the Dataram’s case.
Really, we, as practitioners, devised a ‘legal fiction’ and that fiction was instead of going with habeas corpus and intituling it in the criminal jurisdiction of the court, we used to intitule it in the civil jurisdiction of the court and some judges, even a chief justice... [Mr. Nandlall: It was mistaken.] It was not mistaken. I think they knew it was illegal fiction but they were trying to do justice and they used to grant that concession. But then subsequent to that, there were some other judges who came up and they insisted that bail applications, habeas corpus applications, by the nature being criminal, must be intituled in the criminal jurisdiction, and so a lot of people had to suffer, remain in jail, if they were refused bail or habeas corpus application. We are happy now that because of the Dataram case, where the United States of America wanted him... In fact the reliance on section 6 (5) of the Court of Appeal Act, which states that one could not appeal a criminal cause or matter, prevented him from being extradited at that time.
The definition of what was a criminal cause or matter became very important because a lot of times when the issue came up the actions would really be intituled in the civil jurisdiction of the court. It was held that, in the case of Zaman Ali, that it was the originating proceedings out of which a subsequent application arises that is the decisive factor and not the nature or quality of the application itself. In other words, the case starts in the Magistrates’ Court, it is criminal, somebody makes an application to quash it by certiorari or in the form of a prerogative writ, which is in the civil form, and one might wish to think that he or she could appeal from that and go to the Court of Appeal. Then the objection is even though it comes in a civil form, it was originally a criminal matter or a criminal cause and that would be sufficient for the court to decline jurisdiction.
Any practitioner of the Bar would support this application, but there are other things that we need to rectify in the criminal justice system. Appeal of acquittals by the jury was a misguided provision that was introduced by this Government. We all know that the jury is sacrosanct and has, from time immemorial, been the only democratic acceptable form in criminal trials in any part of the Commonwealth and we believe that one could not challenge the decision; the State ought not to challenge the decision of the jury properly constituted and due cause. That is a matter we are inviting the Hon. Attorney General to also consider. That is why we need ongoing review.
Another important factor is, too, the Caribbean Court of Justice (CCJ). We are signalling to the learned Attorney General that he should bring some legislation to this Parliament, the honourable House, to treat with the question of fast-tracking appeals to the CCJ. We need that urgently. I expect now that we are agreeing to this proposed amendment to the Court of Appeal Act and High Court Act that the Hon. Attorney General would also do the right thing and bring fast-tracking provisions to the Caribbean Court of Justice, so that justice in Guyana will be enhanced.
That notwithstanding, we, in the APNU, support this proposed amendment to the Court of Appeal Act. [Applause]
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