Don’t let the law be a scoundrel’s refuge

HIGH-PROFILE personnel, when confronted with charges, invoke two concepts: presumed innocent until proven guilty and the sub judice rule.

The law is an instrument of impartiality that ensures the rights and dignity of the citizens through a fair trial that allows all parties to present their case without prejudice.

The notion of “innocent until proven guilty” evolved over centuries and is a widely held point of view in many legal systems. It avoids trial in an undisciplined court ruled by emotions rather than rational thought.

In a trial, it is the function of the State to prove the guilt of the accused, as in the eyes of the law he is innocent. The fact that a charge is laid does not compromise his status as a free person. That “innocence” is also implied in the Constitution that assures the “dignity” of the individual.

Politicians and public officials swear not only to abide by the Constitution, but also to the provisions of the Public Service Act and the Code of Conduct “to promote exemplary conduct” and to execute their duties in a “professional and accountable manner, and is honest in dealing with public funds…”

They have a moral and ethical duty in respect of their conduct, are held accountable to the public and to the highest standards of competence, integrity and professionalism.

A parking offence committed by an official is not newsworthy to the public. But the theft of funds from public coffers is of great concern as such money is derived from taxes levied on the public.

Be that as it may, a politician or public servant who invokes his constitutional rights also has a duty of accountability to the public.

When a charge is laid against an official, institutional integrity is of greater gravitas than personal reputation. Before an official is charged, an investigation as complete as possible is made to collect sufficient and relevant evidence that points to a possible infringement of the law. The evidence must meet the highest standard of proof to establish guilt.

We trust in the integrity of the police and that they are guided only by the law in the performance of their duty. While such evidence does not prove guilt, the audi alteram partem rule also provides the accused an opportunity of defence.

In the spirit of good governance, public servants or officials when charged should step down until the legal process takes its course.

The continued occupation of the post compromises the integrity of office and loss of public trust and confidence that society needs to have in their public representatives.

Those charged with criminal offences also invoke the sub judice rule as a shield for protection from public scrutiny. “No comment, the matter is sub judice”, is an escape hatch used by politicians; and provides a veneer of legitimacy to their refusal to answer questions related to the charge. It is a fallacy that the sub judice rule places a carte blanche restriction on commenting on a case or exonerates an official from accountability.

In a constitutional democracy, the rights to a fair trial must be weighed against the freedom of expression, the media’s right to publish – as long as such publication “does not prejudice the administration of justice” – and the public’s right to be informed, especially on matters of pubic concern.

The rule “innocent until proven guilty” is inviolate as every person is given equal protection under the law, while there is nothing absolute about the sub judice rule.

Let not the law “be the last refuge of a scoundrel”.

DS RAJAH | Musgrave