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