A civil remedy exists

Nov 05, 2022 Features / Columnists, Peeping Tom

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Kaieteur News – Many years ago – more than a decade or so – a man was accused of murder. He was arrested for the offence but not yet charged. His anxious relatives went to a see a private Lawyer who is now deceased. The Lawyer has only a few years legal experience under his belt but he was considered as a good defence Lawyer.

The family of the accused man decided to approach this Lawyer because did not think that they could afford some of the more experienced and reputable Lawyers in the profession. The Lawyer met with the family and told them that before he could start to do anything, they have to deposit one million dollars with him. This was just the consultation and retainer fees. The family was told that if the matter went to Court, this would attract more money.  The family had to sell off assets to pay the deposit. I am told that it took them years to recover from having to pay such a hefty deposit.

This is the dilemma faced every day by poor persons who find themselves on the wrong side of the law. Their relatives struggle to find the legal fees demanded by some Lawyers. Many years ago, a commentary in this newspaper suggested that many Attorneys may not have been paying fair share of taxes and were understating their earnings. The then Income Tax Department apparently were of the opinion that many Attorneys were not declaring their true income and therefore it moved to increase the professional fee for Legal, Accounting, Dental, Medical, Optometrists  and Engineers.

The fee for Lawyers was set at $250,000 per year. The move was challenged in the court and according to the Guyana Revenue Authority, they cannot collect this fee because the matter is before the court. As such the certificate, which the GRA was treating as a minimum tax, remains at $10,000 annually for Legal, Medical and Dental professionals. It was pleasing to see that some members of the legal fraternity have taken to protesting the alleged unlawful detention of one of their colleagues. They have a constitutionally-protected right to protest and they can hardly complain that this right is being violated.  They should be reminded however that each year tens of Guyanese allege unlawful arrest and detention by the Guyana Police Force. And many of these persons are poor people who cannot afford hefty legal fees.  It is therefore hoped that now that the legal fraternity is demonstrating its opposition to what is perceived as an unlawful detention, that more members of the legal profession would run to the assistance of poor victims of unlawful arrests and detention. When you are poor in Guyana and your rights are violated and you do not have facility to challenge the violation of your rights in a court of law, you are often forced to accept your humiliation.

But now that more and more members of the legal fraternity are willing to stand up against unlawful detention, that more of them will be willing to offer their services free of cost of poor members of our society whose rights are violated.  The protests by the Lawyers spring from an incident in which one of their colleagues was allegedly detained by the Special Organized Crime Unit (SOCU). It has been reported that the Lawyer was arrested after she reportedly told her client to exercise his right to remain silent.

The media has done a lousy job in reporting on this matter. A report has given of what appears to the police version of this incident but the media appears less than enthusiastic to verify the police’s version of events.  Unlawful detention has a civil remedy and there is more than the likelihood that legal proceedings are going to laid against the State for unlawful detention. If there is a civil remedy, one has to question the purpose of the protest action outside of SOCU. There is a remedy available and this remedy should be exercised.

One person has said that the picketing exercise outside of SOCU has to do with not hearing back anything from the Police.   The Police have reportedly undertaken an investigation and that is likely to include examining the conduct of its officers in the incident. But the Police are not likely to make public its report into the alleged unlawful detention especially considering that civil action may be imminent. If the Police Force admits it erred, then this would make it automatically liable for damages at tort.

If the members of the legal fraternity, including the Guyana Bar Association are of the view that the Lawyer’s constitutional freedoms were violated it should file civil action, immediately. They should do so with the same alacrity as was when the Guyana Revenue Authority sought to drastically increase the fees for a professional certificate

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

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