An ethical breach

Oct 20, 2022 Features / Columnists, Peeping Tom

Kaieteur News – Yesterday, the Caribbean Court of Justice took umbrage at the leak of the decision it rendered in the appeal it was hearing. The CCJ took a serious view of the leak – as it ought to- and it is now likely to discontinue the practice of serving advance copies of its decisions to the Lawyers of parties to a case.

There is no nothing unusual or untoward about the advance copies of the decision being given to Lawyers in the case. This is a common practice of the Court and of other courts. Ethically, those receiving copies ought to keep the contents confidential until the court has rendered its oral verdict. The Lawyers are not even supposed to inform their clients about the decision.

In the case of yesterday’s ruling, however, the outcome of the case appeared on the Facebook page of Attorney General, Anil Nandlall who is one of the Lawyers of the Appellants. The CCJ took a serious and stern view of this development and warned of implications.

Nandlall subsequently issued an apology. But this does not end what is a shocking breach of judicial ethics. The outcome of the case or no aspect of the decision ought to have been leaked before the Court had delivered its ruling. It is now likely that the CCJ may discontinue the practice of giving advance copies of their decisions to lawyers. But this does not erase the seriousness of the ethnical breach which took place. President Irfaan Ali should take a serious approach to this matter. It is not a breach which is a criminal act; it is an ethical issue but one which should warrant the strongest possible sanctions.

This leak has brought Guyana into infamy once again. We were shamed enough by the machination following the elections of 2nd March 2022, to now be subject to now forcing a discontinuance of a judicial custom. There are good reasons why Judges send advance copies of their decisions to the Lawyers of litigants. It provides lawyers a written copy of the oral decision that will follow. They will thus be better able to explain to their clients and to the public the basis of the decision. If the Lawyers had to wait until after the decision to obtain the written grounds, there could be room for misrepresentation and mischief, and even a dispute as to what was said or imputed in the oral judgment. It is always best to have a written copy and the earlier this is obtained the better.

But it is disrespectful and unethical for this advance copy of the decision to be made public before it is read out by the Judges. This is what happened in respect to yesterday’s decision. Now the leak may not have been deliberate. It could be that the person intended to have the information appear on the social media platform soon after the oral decision so as to prevent any distortion of misinformation of the oral decision. And by accident it may have been posted earlier than it ought to. Or it may have been posted by accident or without being authorised

Regardless of this possibility, a breach has occurred, a serious ethical breach. And there must be consequences for this breach. There should be an explanation and an unconditional apology has to be issued to the CCJ, and some form of disciplinary action by the government. Regardless of whether the leak was deliberate or not, someone has to be held accountable.

If the person who is deemed responsible for the leak is a Government Official and if the leak was not deliberate, then the President should act. He should at the minimum, demand an explanation and an apology and perhaps consider a suspension of six months for the person holding the public office. If on the other hand, the leak was deliberate, then the person’s position becomes untenable. The President knows in this instance what needs to be done. It has since been brought to this columnist attention that the Attorney General of Guyana has explained that the administrator of his Facebook page, without authorisation made a post which disclosed contents of an advanced confidential copy of the judgment of the CCJ. The post was subsequently deleted and an apology issued. Nonetheless, the President has an obligation to require an explanation as to how, in the first place, the Facebook administrator came into possession or knowledge of the reported aspects of the CCJ decision.

(The views expressed in this article are those of the writer and not this newspaper.)