Charges against Ashni Singh and Winston Brassington unconstitutional
– Ralph Ramkarran, SC other legal luminaries
Senior Counsel Ralph Ramkarran, in his weekly column, suggests that the charges against former Finance Minister Ashni Singh and former National Industrial and Commercial Investments Limited (NICIL) Executive Director Winston Brassington may be unconstitutional on the basis that they are not “public officers” in accordance with the Constitution.
Singh and Brassington have been jointly charged by the Special Organised Crime Unit (SOCU) on three charges, using a UK common law application: “Misconduct
in Public Office: Contrary to the Common Law.”
Ramkarran states: “Questions have arisen as to who is a public officer. In England, which does not have a written constitution, or apparently any applicable statutory definition, case law developed. In R v Whittaker (1914), the court defined a “public office holder” as “an officer who discharges any duty in the discharge of which the public are interested, more clearly if he is paid out of a fund provided by the public.” More recently, in R v Dytham (1979), Chief Justice Lord Widgery referred to a public officer as one “who has an obligation to perform a duty”.
Ramkarran refers to the Guyana Constitution by stating that in Guyana, however, the Constitution defines a “public officer” as “the holder of a public office”. A “public office” is defined as “an office of emolument in the public service.” And the public service excludes “the Office of the President, [and] Minister.….” and it also excludes “the office of a member of any board, committee or other similar body (whether incorporate or not) established by any law in force in Guyana.”
Various lawyers have also recently pointed out that using the definitions of “public
officer”, “public office,” and “public service” as defined in Article 232 of the Guyana’s Constitution would exclude both Singh and Brassington, from the charges of “Misconduct in Public Office: Contrary to the Common Law.”
Further buttressing their arguments, legal scholars point to a 2006 Caribbean Court of Justice (CCJ) case (“Griffith vs [Guyana Revenue Authority] GRA, AG”), where the Court found that while the GRA was a “public authority”, its employees were not and cannot be “public officers and employees” based on the [Guyana] Constitution.
The CCJ ruling also referred to a Court of Appeal ruling that the “ …Guyana Electricity Corporation as a public corporation was mandated by section 9 (1) of the Public Corporations Act 1988 to employ its own officers and servants. The officers of public corporations appointed under these provisions were not or are not constitutional public officers nor were or are they public officers as defined in Article 232 of the Constitution.”
Specifically, the CCJ in its 2006 ruling in favour of the GRA states under paragraph 46, “This court is firmly of the view that the Revenue Authority is a new corporate entity distinct from the government although it is a public corporation. The employees of the Revenue Authority are not holders of any public office nor are they employed in the service of the government of Guyana in a civil capacity; see also Chue and Hyman v Attorney General of Guyana (unreported, H.C.A. No. 6 of 1998) at pages 27 and 43 per Carl Singh J. (as he then was).”
Paragraph 47 of the same CCJ ruling states: “The Court of Appeal in Michael Scotland v Guyana Electricity Corporation (unreported, Civ. App. No. 122 of 2000)
considered legislation which placed electricity under the management of a public body and held rightly that the employees of that public body were not public service employees within the meaning of Article 232 of the Constitution.”
Ramkarran, in his column, provides useful information on the nature of the UK law. He said, “While the offence can be traced back to the 13th century, a definition, given by Chief Justice Lord Mansfield in the 1783 case of R v Rembridge emphasised its importance: “…. first that a man accepting an office of trust concerning the public, especially if attended with profit, is answerable criminally to the King for misbehaviour in his office; …. Secondly, where there is a breach of trust, fraud or imposition in a matter concerning the public, though as between individuals it would be actionable, yet as between the King and the subject it is indictable. That such should be the rule is essential to the existence of the country.”
Over the centuries, the crime was characterised by vagueness. Fast forwarding to the 21st century, in 2003 in the case of Attorney General’s Reference (No. 3 of 2003), each defendant was charged with “misconducting himself whilst serving as a police officer by wilfully failing to take reasonable and proper care of [A], an arrested person in police custody”.
“Seeking no doubt to modernise the definition of the offence, the Attorney General sought the opinion of the court on the following questions: *What are the ingredients of the common law offence of misconduct in public office? *In particular, is it necessary in proceedings for an offence of misconduct in public office for the prosecution to prove bad faith, and if so, what does ‘bad faith’ mean? The court responded that the offence is committed when: (1) a public officer, acting as such, (2) wilfully neglects to perform his duty and/or wilfully misconducts himself, (3) to such a degree as to amount to an abuse of the public’s trust in the office holder, (4) without reasonable excuse or justification. It was made clear that it is an offence defined more by conduct than by results.
This definition of “public trust” remained at large,” Ramkarran noted.
He continued: “In 2008, Christopher Galley, a civil servant in the Home Office, was arrested for misconduct in public office for allegedly passing confidential and restricted documents to Damien Green. Green was arrested on suspicion of conspiring to commit, and being an accessory to, the alleged offence by Galley. The [Director of Public Prosecutions] DPP decided not to prosecute because, whilst there was damage to the Home Office’s arrangements for handling such documents, there needed to be additional damage, such as harm to national security, and in the absence of such evidence, there were no realistic prospects of conviction. The DPP’s decision highlighted the departure in practical terms, from the notion that the conduct, not the results, define the offence. The DPP’s decision emphasised that in prosecutorial decision-making, the results of the impugned acts are a critical element in determining whether a conviction is likely. And if it is not, the State’s resources should not be wastefully expended in vainly pursuing a conviction. Although “public trust” was not an explicit issue, an understanding of it, in the sense of harming the public, was taking shape in legal circles.”
He reminded that “in the more recent case of R v W (2010), the Court of Appeal of England broadened and expanded the definition of the offence, exacerbating the existing confusion. Included were: frauds and deceits (in office); wilful excesses of official authority (malfeasance); the international infliction of bodily harm, imprisonment or other injury upon a person (oppression). Notwithstanding this decision, the House of Lords in R v Rimmington, R v Goldstein (2005) has suggested that the charge of misconduct in public office should be imposed only where there is no statutory offence, but where the behaviour should nevertheless be considered as criminal”.
Former President Bharrat Jagdeo has pointed out that all three charges against Singh and Brassington are frivolous and all three matters were approved by the Cabinet. Former President Donald Ramotar has also come out strongly in defence of Singh and Brassington.
In concluding on the charges, a legal scholar has posited that this is “an open and shut case”. Neither Singh nor Brassington are “public officers” and as such. the law under which they are charged (based on both the Constitution and legal precedents all the way to the CCJ) cannot be applied to them. Even without this point, both Brassington and Singh can strongly argue that any action related to the charges is excused or justified, having obtained Board and Cabinet approvals for each of the transactions – strong evidence of oversight, supervision, and authority to act. On the other elements of the offence, the DPP would have difficulty showing that the actions that are almost a decade old, “amount to an abuse of the public trust”, or “reflect one who wilfully neglects to perform his duty.” Lack of a valuation, particularly when compared with a public tender and lacking any basis in law, can hardly be criminal, particularly when there is Cabinet authority and approval, for each transaction.
The DPP is yet to respond to a written request by former AG Anil Nandlall to review the charges against Singh and Brassington. Yet, similar charges instituted by the People’s Progressive Party (PPP) against five sitting Ministers, on the other hand, have been thrown out by the DPP.