THE GHRA MUST ALSO RESPECT THE HUMAN RIGHTS OF THE COMMISSIONER OF POLICE

Apr 02, 2012 Features / Columnists, Peeping Tom

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The Commissioner of Police recently brought an action asking the court to quash a recommendation of the DPP that he, the Commissioner, be charged for rape.
The decision went the Commissioner’s way. This has upset the Guyana Human Rights Association (GHRA). But one has to ask whether the GHRA has actually read the sixty- four page judgment of the Chief Justice; one has to ask also whether the GHRA has examined the issue of the credibility of the person who accused the Commissioner of having forced sex with her; or whether the GHRA is familiar with the basis of the DPP’s recommendations.
If the GHRA has not done any of these things, it is in no position to pass judgment on the Chief Justice’s ruling.
If on the other hand, the GHRA had adopted the position that in common law the discretion of the DPP remains beyond challenge in the courts and it therefore for an accused to establish the flawed exercise of discretion in a trial and not through judicial review, the GHRA would be on much firmer footing. But based purely on media reports, the GHRA seems to feel that a rape victim has been unjustly treated.
It is free to arrive at this conclusion but the GHRA must also appreciate the fineries of the law. A decision to prosecute has to be based not on the mere fact that the DPP feels that an offence as claimed has been committed, but also on the chances of successful conviction.
Whatever the DPP believed happened between the Commissioner of Police and his accuser, the decision to charge has to also examine the likelihood of a successful prosecution. The DPP should not recommend charges unless the DPP is certain that the evidence before her can successfully prosecute that charge.
If the examination of the evidence tendered before, including its reliability and the credibility of the witnesses, leads the DPP to be unsure of the certainty of a successful prosecution, the DPP is duty- bound to so indicate in her advice to the police.
The GHRA therefore must not become emotional simply because we are dealing with an accused and an accuser who are far apart in terms of power in the society.
There is within our society, a strong temptation when dealing with such cases for persons to want to go for the jugular: “Let us get a well known individual, someone with power.” It is the temptation of the small person’s revenge.
There is equally a burning desire of many to get even with the current administration by seeking to have high officials indicted. There is even a movement to try to deny the benefits in law to those eligible to enjoy these benefits. Behind all of this is a thinking that says, if we cannot win them at the polls, let us name, shame and humiliate high officialdom.
The GHRA CANNOT be accused of doing this but they must be circumspect in not playing into the hands of those with this agenda.
The second temptation is for there to be apprehensions that because of the influence of the accused, this influence could be used to pervert the course of justice. In short, might will prevail over right.
The government rightly sought to disabuse the possibility of the course of justice being perverted and thereby avoiding the claim that the police would not have been independent in their work. The government invited crime sleuths from Jamaica to undertake the investigation.
The investigators reportedly made some recommendations. There are conflicting reports as to what were their findings.
The file went to the DPP for her recommendation and she reportedly recommended that charges be filed against the Commissioner.
Before the charges could have been filed, the Commissioner moved to the courts in order to quash the recommendation. The Court has now vitiated the recommendation of the DPP.
Based on reports in the media the Chief Justice went through the evidence meticulously to establish issues such as reliability of the evidence, the credibility of the accuser and the prospects of a conviction.
Instead of addressing these issues, the GHRA is attacking the Chief Justice’s ruling on the issue of consent.
There is of course open to the GHRA and to the person who made the accusation, the option to appeal the decision and to take it all the way to the Caribbean Court of Justice. Perhaps the GHRA, if after reading the Chief Justice’s decision is interested in this approach, could assist the woman who alleged that she was raped to have the matter taken further within the legal system.
The GHRA cannot however just be interested in the human rights of the woman. It has to also defend the human rights of the Commissioner. If there is incontrovertible evidence that the Commissioner was framed and thus made to go through a great deal of emotional stress and turmoil, especially considering his fragile health, then it is within the right of the Commissioner to sue his accuser for making malicious allegations against him.
The man’s heart could have given out on him, given the stress that he must have undergone and therefore if he turns out to be the victim in this case, GHRA must be as forceful in asserting his right to seek remedies, as it is now criticizing the Chief Justice’s take on consent.
More importantly though, the Chief Justice’s decision represents a serious indictment against the judgment of the DPP. It is for her to either defend her original opinion by appealing the decision of the Chief Justice, or in the face of this ruling reconsider her future as the Director of Public Prosecutions.

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