Dear Editor,
Without prejudice to the intent of President Ali in his appointment of the five-person Commission of Inquiry into the MV Barima capsizing; and the actual disposition of the appointees, I wish to apply the adage: “It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done” to the circumstances of the appointment of the Commissioners, and the implication for Justice ‘seen to be done’.
The adage has its origin in the decision handed down, by Lord Hewart, in the case of Rex v. Sussex Justices, [1924] 1KB 256. In that case a previous decision was being appealed on the grounds of Conflict of Interest because the Deputy Clerk, the brother of the Clerk to the Justices, who was an associate of one of the firms representing one of the parties in the case, ‘deputized for his brother, and retired with the Judges, in Chamber, to consider their decision’.
The affected party appealed the decision on the grounds that “it was improper for the deputy clerk to have retired with the justices before they delivered their verdict.” “He contended that he was a partner of the very law firm which was engaged to sue him for damages … therefore it was improper for such a partner to also retire with the justices.” In response to that argument “the Sussex Justices argued that the deputy merely retired with the judges to their chambers but he did not take any part in their deliberations. Therefore, his presence would not invalidate the conviction [the decision] and, at best, was an irregularity.”
Lord Hewart, in handing down his decision did not dispute the argument of the defendants. But in handing down his decision, ‘quashed the original conviction by observing “It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”.
By virtue of that decision Lord Hewart laid down a precedent in Common Law Jurisprudence and established a Best Practice for deliberative bodies.
In the instance of the establishment of the Commission of Inquiry into the capsizing of the MV Barima, concern and/or objection has been raised about the persons who have been identified to be commissioners. That concern is greater than their passive presence, which was the basis for Lord Hewart`s decision. It is a matter of actual participation (active presence) in the core activity, the determination of the matter.
One objection is that one of the commissioners was the electoral agent for the UNC of Trinidad and Tobago, which is a fraternal party of, and close ally to, the governing party, under whose governorship the Inquiry is being articulated, constituted and convened. Another is said to be a shareholder in a marine enterprise that is regulated by MARDS, a local regulator, which should be of interest to the Inquiry. All of these concerns and more, whether factual or not, are scenarios where persons have expressed suspicious about the presence and disposition of such persons. This is analogous to the concern that was identified as the grave issue in the case of Rex v. Sussex.
The issue is not one of fact. It is one of perception, as Lord Hewart articulated: “justice should not be done, but should manifestly and undoubtedly be seen to be done.” No room should be left for doubt or suspicion about the presence of actors in the process. In the attending circumstances whereby, it appears that there is no public disclosure or acknowledgement of the extant or existent interest or association held by the proposed members of the commission who may bear out circumstances that can lead to public suspicion, we are about to embark on a potentially contaminated sojourn. Notwithstanding, disclosure would not purify their appointment or its purpose.
The political environment in Guyana is extremely toxic with any and everything taking on antagonistic political dimensions. In such circumstances, transparency, inclusion and openness, are essential to the detoxing of the environment, and the legitimizing of the actions of the state. These benchmarks are both contemporaneous and universal.
Precedents and Best Practices should always play a major role in the decision-making processes. In setting up of the Commission of Inquiry, the government should leave no stone unturned in the pursuit of legitimacy. In his wisdom, Lord Heart proffered that “Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice”. We cause harm to the credibility of our legal system, the public interest, and our overall governance framework in general, and the particular case, whenever we ignore this salutary principle.
Yours truly,
Vincent Alexander
