Does the Chief Justice’s decision aid in development of the law or impede it?

Apr 05, 2012 Letters

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DEAR EDITOR,
Will Justice Chang’s decision to prohibit a rape charge against Henry Greene go unchallenged? Will the Attorney General sit idly by and watch while an alleged rape victim is denied a right to redress in the courts? I hope not!
Should the Chang decision be left unchallenged, the plight of women and girls in sexual assault cases will exacerbate, as victims may not see the need in pursuing justice in a system which denies their complaint even before it is heard.
A brief perusal of the decision seems to suggest that the Chief Justice might have relied heavily on the issue of the victim’s credibility in order to make his decision. However, assuming for a moment that the complainant in fact has a checkered past, is that sufficient to debar her from seeking redress in the courts?
A follow-up question would be, how far can a judge go in applying the credibility test, noting that such a test, if applied liberally, might very well strip the victim of his/her constitutional right to seek redress in the court, for alleged wrongs committed against him/her?
This case gives one the impression that the courts in Guyana subscribe to a maxim which promotes the belief that a person who has committed past wrongs can never approach the courts to seek justice for later wrongs committed against him/her.
Simply, it looks like we’ve adopted a position which promotes the idea of ‘once a thief always a thief’ and therefore a thief has no constitutional right. What archaic thinking!
Secondly, how far can the Chief Justice intervene to determine the right of a person to seek a free and fair trial, without that judge improperly usurping the duties of a lawful jury?
Thirdly, how can the action of the judge not impede the authority of the Director of Public Prosecutions (DPP), in whom the authority to recommend cases for trial resides, or there is an agreed overlap of duties between the office of DPP and that of Chief Justice?  Where is the line drawn?
This decision leaves the nation with more questions than answers and creates blurred lines between the duties of the DPP and that of the Chief Justice, it also raises questions of the relevance of customs, morals, societal values and ethics, with respect to cases and allegations of grave social wrongs. Further, it emphasises the ongoing psychological battles that women will continue to have in sexual assault cases, particularly when a high ranking member of society is alleged to be the perpetrator.
In the case of complaints of sexual assault, will we see an increase in the number of reported cases, or will the victims, continue to cling to that fear that they will be further prosecuted by society and probably those in authority, if they come forward?
Will this case open the floodgates for accused individuals to seek the intervention of the Chief Justice who can now determine whether the victim is ‘credible’ before he proceeds to have the court entertain a charge against the accused? How will this case impact on the development of Guyana’s jurisprudence?
This is a landmark case for a number of reasons. For starters, it is the first time in the history of our country that the DPP, after reviewing the facts, has recommended that our Commissioner of Police be slapped with a rape charge. Secondly, it is the first time that the Chief Justice has challenged the DPP and asked that she provide reasons for her decision.
Quite often, landmark decisions aid in advancing the law or propelling its development, however, there is much doubt that Guyana, as a nation, will benefit from Justice Chang’s action. I personally believe that there was a great degree of overreaching by the learned Chief Justice and further I believe that he might have been errant in failing to place the case in the present context of Guyana’s society.
I therefore, will close as I opened. Will this decision by the Chief Justice go unchallenged? I believe that it is in the interest of the office of the Attorney General to take action to see whether the decision was sound in law, or whether there was a constitutional breach which has caused a citizen to be denied access to the court.
We have seen the Attorney General move to the courts to ask for a matter regarding the constitutionality of parliamentary committees to be entertained; here we have a case where a woman might be denied access to the court because her constitutional rights have essentially been stripped from her. Let us do the right thing and protect our women!
I know that this decision will occupy much deliberations by the many women’s organizations and human rights groups in Guyana, however, I would also urge the youths to take time out to assess this decision, as it will have an impact on all of our lives.
Lurlene Nestor

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