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The courts are reviewing themselves

Jan 30, 2010 Editorial

The courts are questioning themselves. Courts are never meant to be controversial but from time to time they are always caught up in the interpretations of the law. Indeed, the law is never straightforward. For example, a man may be found breaking into a home and that is a crime. However, if the man owns the home into which he is breaking, then he is committing no crime.
The most recent brouhaha involves a judge who granted bail to a murder accused. This is not the first time that a judge has granted bail to a murder accused. Chief Justice Ian Chang granted bail to Hemchand Persaud on May 19, 2008. He was charged jointly with another person who opted to plead guilty after the courts managed to sort out the confusions surrounding the preliminary inquiries.
Persaud had been in jail since 2000 for the murder and on three occasions the courts had to halt the preliminary inquiries—on one occasion because Hemchand Persaud was not in custody when the other accused was arrested. The preliminary inquiry got underway and then the police arrested Hemchand Persaud. The matter had to be restarted.
The second time the charges were improperly placed to the extent that the two men would have had to undergo two separate preliminary inquiries for the same murder. Again the matter had to be halted and the charges re-filed.
At the start of the third preliminary, one co-accused pleaded guilty. The preliminary inquiry had to be halted once more. The Chief Justice found that Hemchand Persaud could not be faulted for his continued incarceration. His lawyer approached the court and the Chief Justice granted him bail.
Justice James Bovell-Drakes became the second judge to grant bail to a murder accused. However, this decision is being challenged, perhaps more vehemently than the challenge to the decision by the Chief Justice.
It is not appropriate for us to examine the challenge but we could examine the situation leading to the granting of bail. The lawyer representing the murder accused contended that his client had been in jail for six years. The records however showed that his client had been incarcerated for just under five years having been arrested on February 13, 2005.
There is also the question of justice being done. One argument being proffered is that the judge ordered that the accused be brought before him. This raises some questions. Was there a special interest? Would the accused have been granted a fair trial? Do judges normally demand that certain accused be brought before them?
For some years now, there has always been talk about prisoners languishing in jail awaiting trial. We still remember that some of the men who broke out of the Camp Street jail on February 23, 2002, had often climbed on the roof of the prison to demand their day in court.
Former Chancellor of the judiciary, Madame Desiree Bernard bemoaned the granting of adjournments by judges to lawyers who had not properly prepared their defence. She argued that this helped delay the trials.
British jurists, with the interest of the prisoners at heart, suggested that the preliminary inquiry be abandoned. They believe that this adds to the delay in getting an accused to court.
The judge in this case believed that the accused had been in custody for too long—according to information presented to him, six years. The office of the Director of Public Prosecutions feels that the judge acted outside his bounds, hence the challenge.
This will not be the first time that one judge would be asked to rule against or support a colleague on the same bench. This has happened in the instance of the challenge brought by CL Financial on behalf of Clico Guyana. The Chief Justice had ruled and a junior judge has ruled that the decision by the Chief Justice is flawed.
Certainly the courts in Guyana are examining themselves and perhaps breaking new ground. And when all is said and done, there are still the appeals.

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