No clear divide between legal rights and moral obligations

Jun 26, 2023 Features / Columnists, Peeping Tom

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Peeping  Tom…

Kaieteur News – It is always important to distinguish between legal rights and moral obligations. The right to silence is a legal right of all accused persons but what about the moral obligation of those holding public and political office? Do holders of such offices have a moral obligation to answer questions on matters which are the subject of a criminal investigation?

An official of A New and United Guyana (ANUG) was recently reported as claiming there is no right of silence outside of a criminal court. As such, the learned counsel contended that the holders of political office have a duty to answer questions which, while not lending towards a conviction, has a bearing on a person’s suitability for office.

If the argument proposed by the learned counsel has validity, it would mean that those persons who were charged with electoral offences have a moral obligation to answer questions about their suitability to hold public office.

Unfortunately, when it comes to criminal investigations there is no clear demarcation between the legal right to silence and the moral duty to justify one’s suitability for holding public office. In fact, the answers to the ‘moral’ questions posed by the learned counsel are not only material to the criminal investigation, they can also be self-incriminating.

The learned counsel would know that a legal right against self-incrimination is a protected right provided for in our laws. This right is rooted in the presumption of innocence. If the presumption of innocence is to have any legal worth it is only logical that there be a right against self-incrimination.

The right against self-incrimination therefore flows directly from the right to the presumption of innocence. In Gibson vs. Attorney General of Barbados (2010), it was held that there is, under common law, a right to silence and no obligation of the defence to aid the prosecution.

The right to self-incrimination means that no one can be compelled to provide evidence that could be used against him or her in a criminal or legal proceeding. Four hundred years ago a precedent was established that the State should not have the power to force persons to incriminate themselves.  An accused person has a right to remain silent and to refuse to provide any evidence or answer any questions.

Nor should invoking the right of silence be assumed to be an inference of guilt. It has long been held that an accused person’s decision to remain silent should not be taken as an admission of guilt.

On the other hand, a moral duty to provide answers relates to ethical considerations.  It suggests that individuals have a moral obligation to address relevant questions or concerns posed to them, even if they are not legally required to do so.

However, as mentioned before, there is no clear demarcation between the legal right to silence and the ethical duty to provide answers on issues that are likely to be the subject of criminal investigations. The questions which the learned counsel posed are predicated, it is presumed, on a moral duty to establish suitability for continuing to hold public office. But the learned counsel who posed those questions ought to know that the answers to those very questions are of evidential value and can be self-incriminating.

But the issue does not end there because, true to form, Bharrat Jagdeo, has put his foot in his mouth, yet again. He has implied that the political future of one of the country’s Ministers is dependent on a conviction. These are his exact words: “…there must be a full investigation of the allegations and if the minister is found guilty, he faces all the consequences associated with that charge and court imposed.”

But what if the Minister is exonerated by the court but the evidence suggests something improper was happening? Would the government and the PPP/C be willing to impose sanctions on the basis of moral or ethical considerations?

It should be recalled that under the Donald Ramotar administration, a Minister was forced to step down following an incident in which there was alleged threat to a female. Even though there was no criminal charge, the Minister was asked to demit office.

Jagdeo therefore has to be careful about standing on only a legal limb. As is being suggested by the learned counsel, there is also a moral obligation to establish suitability for office.

While this moral obligation must not compromise the rights against self-incrimination, surely after the legal or investigative processes have been exhausted, there will be a moral judgment which will have to be made. And surely, this should have implications on the Minister’s political future. But for now, the Minister cannot answer the questions posed by the learned Counsel from ANUG as these can be self-incriminating.

Disclaimer: The opinions expressed in this column are those of the author. They do not purport to reflect the opinions or views of Kaieteur News.

 

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