The Rule of Law and Roger
by Ravi Dev

Events unfolding in Guyana with the Roger Khan saga bring once again to the fore the issue of on what basis we are going to be governed in this country. Over the years, our articles have stressed our stated commitment to the concept of the “Rule of Law” – the scheme that we are “governed by laws and not by men”. Whatever complaints we may have about the colonising experience, the ideal of the Rule of Law, bequeathed by the British, has been the one hope offered to us to create a viable society out of the congeries of nations that were thrown into this land of many waters and enable us to fulfil our long suppressed potential to be human. Between us and the jungle is the Rule of Law.

Unfortunately, it has too often been the case that those who have been entrusted to hold the reins of government in the ex-colonies are willing, for reasons of their own, to turn a blind eye to what the Rule of Law entails and demands. And this is one of the primary reasons why these very countries have remained, “ Third World ” and inevitably, “Third Rate”. We in Guyana want to live like the “developed” countries; our leaders want the trappings and titles of the leaders of the “ First World ” – but they do not have the fortitude to stand on the bedrock of what has made those countries into havens of stability and progress – the Rule of Law.

What is this Rule of Law and in what way is it being transgressed today? While it may appear to be academic and arcane to invoke such terms – it is literally a matter of life and death – not just of ourselves but of our country itself. The Rule of Law is fundamental to the western democratic order to which we aspire. The citizens in those countries have imbibed the values of the Rule of Law over the centuries and it is now so very deeply imbedded into their national psyches that they have an almost reflexive resistance when it is threatened or violated. Unfortunately, we in Guyana have not had that long experience so we will have to remind ourselves periodically of what the concept is and then insist that all of us - especially our government - live up to its ideals. There is no half-way stand – either you adhere to the Rule of Law or you descend into anarchy.

Aristotle said more than two thousand years ago, "The Rule of Law is better than that of any individual." Lord Chief Justice Coke of England , quoting Bracton, said in the case of Proclamations (1610) 77 ER 1352: "The King himself ought not to be subject to man, but subject to God and the law, because the law makes him King."

The Rule of Law in its modern sense owes a great deal to the late Professor AV Dicey, who said that first and foremost: “When we say that the supremacy or the Rule of Law is a characteristic of the English constitution, we generally include under one expression at least three distinct though kindred conceptions. We mean, in the first place, that no man is punishable or can be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.”

In modern parlance, the essential characteristics of the Rule of Law are: The supremacy of law, which means that all persons (individuals and government) are subject to law; a concept of justice which emphasises interpersonal adjudication, law based on standards and the importance of procedures; restrictions on the exercise of discretionary power; the doctrine of judicial precedent; the common law methodology; legislation should be prospective and not retrospective; an independent judiciary; the exercise by Parliament of the legislative power and restrictions on exercise of legislative power by the executive and last but not least, an underlying moral basis for all law.

In the present imbroglio unleashed by the Roger Khan saga, the component of the Rule of Law – the concept of “Justice” has come under threat. Ironically, it is this component that those who would leave Mr. Khan to swing in the wind have invoked as his major transgression. To wit, that he allegedly participated in being judge, jury and executioner in the deaths of a large number of young men (and women) who he decided had unleashed a wave of terror on Guyana . Mr. Khan has himself admitted to a role in the said “criminal cleansing”.

Before him, we had castigated the Minister of Home Affairs for also acting outside the rules of his office in those “extra-judicial killings”. So it needs to be explained why so many of our upstanding citizens are silent when Mr. Khan's human rights were so blatantly violated by the Surinamese officials. Why are we now silent when the Surinamese did not pursue the so-called “charges” they brought against Mr. Khan? On what basis did they “expel” him into a plane that whisked him to the US ? How is this action by the US authorities different from the “rendition” that all the European nations have condemned when it was shown to have occurred on their soil? Why are we silent on it?

The concept of justice has three facets - interpersonal adjudication, law based on fault and an emphasis on procedures. Impersonal adjudication is based upon the rights and duties of the individual person. The liberal concept of justice is an interpersonal one - resolution of conflicts between individuals. Individuals can suffer or perpetrate wrong. Individuals can be punished, protected and granted restitution. Justice is an interpersonal thing. It consists in upholding that which is right and due as between persons.

If Mr. Khan is the leader of the largest drug operation in Guyana, as was flatly asserted by the Chief of Staff of the GDF (who took some credit for the busting of Mr. Khan's operations), he certainly would have trampled on the rights of numerous citizens (not to mention the aforementioned “executions”) and so ought to be brought before the courts in Guyana. Where has his “faults” been proven? Where is the “emphasis on procedures” encapsulated by the term “due process”?

We repeat Dicey's admonition: “no man is punishable or can be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.” Just as we insisted that apparent transgressions by the Commissioner of Police of the rules of his office ought to be pursued in accordance with the Rule of Law – as encapsulated by the Constitutional stipulations – we can apply no less strict a standard to Roger Khan. If we do not, then for whom will the bell toll next? 070206

[Editor's Note: Published in Kaieteur News, July 2, 2006.]

July 2, 2006
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