Fun­da­men­tal rights and the cit­i­zen

Stabroek News Sunday - - REGIONAL NEWS -

On Wed­nes­day last the pub­lic was treated to a bril­liant and ex­pan­sive lec­ture by the for­mer Chan­cel­lor (ag) of the Ju­di­ciary and now Distin­guished Ju­rist-in-Res­i­dence at the Univer­sity of Guyana, Carl Singh. The sub­ject was ‘The Con­sti­tu­tional Guar­an­tee of Fun­da­men­tal Rights and the Cit­i­zen’. The lec­ture, to a packed hall and at­ten­tive au­di­ence at Herd­manston House, was the third in the se­ries ‘Con­ver­sa­tion on Law and So­ci­ety.’ Chan­cel­lor Singh started by point­ing out that while cit­i­zens may not al­ways be cog­nizant of what their rights are, they are cer­tainly aware of what the Constitution guar­an­tees them, which they are often pre­pared to ag­gres­sively de­fend. He re­lated the story of a vis­i­tor to a hos­pi­tal in Ge­orge­town who was be­ing pre­vented from en­ter­ing be­cause the vis­it­ing hours had come to an end. Dur­ing the ar­gu­ment be­tween the vis­i­tor and the hos­pi­tal staff, the vis­i­tor loudly pro­claimed that it was her con­sti­tu­tional right to en­ter the hos­pi­tal to visit her rel­a­tive!

Chan­cel­lor Singh ex­plored a wide range of is­sues, not all of which can be ex­am­ined here. A few are se­lected.

The right to life, which is pro­tected in our Constitution, was ex­plored at length by Chan­cel­lor Singh. In Guyana, there are no cases ex­plor­ing the con­sti­tu­tional right to life, and the mean­ing of ‘life.’ There was no rea­son to think that ‘life’ would mean any­thing more. But in In­dia, Chan­cel­lor Singh pointed out, the right to life has been given a wide com­pass to in­clude not only the right to a liveli­hood but also the right to live in slums and on pave­ments near to places of em­ploy­ment. Chan­cel­lor Singh ex­pressed the view that the de­vel­op­ment of In­dian ju­rispru­dence, at least in this re­gard, de­pends on In­dian so­cio-eco­nomic con­di­tions. He was in ef­fect say­ing an ex­panded def­i­ni­tion of ‘life’ took ac­count of the depth of poverty in that coun­try and that such an ap­proach might not be wholly rel­e­vant else­where. This view raises pro­found and fun­da­men­tal ques­tions as to the con­sti­tu­tional mean­ing of ‘life.’ Does ‘life’ have one mean­ing for the en­tire hu­man­ity or does the mean­ing de­pend on the state of so­cio-eco­nomic de­vel­op­ment in the coun­try? This is not an is­sue that can be re­solved here.

Free­dom of ex­pres­sion is a top­i­cal is­sue and it has al­ways been a mat­ter of con­tro­versy in Guyana. The dis­missal of Dr David Hinds and Mr Lin­coln Lewis as colum­nists of the gov­ern­ment-owned Chron­i­cle framed the dis­course on this topic. Chan­cel­lor Singh shone light on the al­most for­got­ten de­ci­sion of the late then Jus­tice Aubrey Bishop who ruled in the case of Make­peace Rich­mond v Guyana Na­tional News­pa­pers Limited, the pub­lish­ers of the gov­ern­ment owned Chron­i­cle, that the lat­ter vi­o­lated the con­sti­tu­tional right to free­dom of ex­pres­sion by re­fus­ing to pub­lish an ad­ver­tise­ment by the Lib­er­a­tor Party for a pub­lic meet­ing. For mem­bers of the Ju­di­ciary who fear con­se­quences in mat­ters like these, they should re­mem­ber that Aubrey Bishop went on to be­come a Court of Ap­peal Judge and Chan­cel­lor.

Chan­cel­lor Singh re­minded the au­di­ence of the Hope v New Guyana Ltd case in which the Court of Ap­peal up­held the ‘di­rect im­pact’ test of sub­sidiary leg­is­la­tion on free­dom of ex­pres­sion as op­posed to the ‘pith and sub­stance’ test. An or­der was made re­quir­ing a li­cence to im­port newsprint. The re­sult was that the Mir­ror news­pa­per, which rep­re­sented the views of the op­po­si­tion

TPPP, and pub­lished by the New Guyana Co Ltd, was de­nied a li­cence to im­port newsprint. The re­sult was that the Mir­ror news­pa­per was printed on bor­rowed newsprint and shrunk to a broad­sheet pub­lished part of the week. The New Guyana Ltd chal­lenged the con­sti­tu­tion­al­ity of the or­der. The High Court ruled in favour of New Guyana. The Court of Ap­peal over­turned the High Court’s de­ci­sion and held that since the or­ders did not have a ‘di­rect im­pact’ on free­dom of ex­pres­sion, it was law­ful. The ‘pith and sub­stance’ test, (the true na­ture and im­pact of the or­der) was re­jected. This in­ter­pre­ta­tion gained cred­i­bil­ity by the gov­ern­ment’s re­fusal to grant a li­cence to im­port newsprint given as a gift by the Ja­maican Gleaner. Crit­i­cised by Sir Fred Phillips, a Caribbean con­sti­tu­tional law scholar, this de­ci­sion of 1979 jus­ti­fied and per­pet­u­ated the de­struc­tion of press free­dom in Guyana.

The Chan­cel­lor re­ferred to at­tacks which were made on the ju­di­ciary in the past by rul­ing au­thor­i­ties, tend­ing to un­der­mine the in­de­pen­dence of the ju­di­ciary. At the same time, he pointed to the stud­ied di­min­ish­ing of the in­de­pen­dence of the ju­di­ciary by the ju­di­ciary it­self when Chan­cel­lor Crane an­nounced that the courts should be guided by the ex­ec­u­tive’s pol­icy of so­cial­ism. he ju­di­ciary at this time is dif­fer­ent from the ju­di­ciary in the 1970s and 1980s. And it is func­tion­ing in dif­fer­ent con­di­tions. De­spite these dif­fer­ences, ju­di­cia­ries in small, de­vel­op­ing, coun­tries usu­ally find it very dif­fi­cult to sus­tain their in­de­pen­dence. But for the Caribbean re­gion, it is only in Guyana that the ju­di­ciary was left be­hind. The ju­di­cia­ries of Ja­maica, Trinidad and Bar­ba­dos did not face the same chal­lenges as in Guyana and were able to main­tain a sturdy in­de­pen­dence. The best we can do is to con­tinue to strongly sup­port and de­fend our ju­di­ciary, giv­ing our judges strength to de­velop and sus­tain their in­de­pen­dence.

Newspapers in English

Newspapers from Guyana

© PressReader. All rights reserved.