Law gives Dr. Hussein the right not to incriminate himself
by Wendella Davidson
FIRST Vice President of the Guyana Public Service Union (GPSU) Dr Anwar Hussein was on Monday questioned on aspects of his involvement during the 55-day Public Sector pay strike earlier this year. Following the cross-examination by Senior Counsel Bernard De Santos representing the Police, the medical practitioner/trade unionist who recently resigned his post with the GPSU, was examined by his attorney, Senior Counsel Rex McKay. This took place after legal exchanges among Justice Singh conducting the Inquiry and Mr McKay for the witness and De Santos. They argued on whether the position to be taken by the witness was proper. The discussion was prompted by Senior Counsel McKay when he informed the Commission that his client had nothing to say. But Justice Carl Singh stated that on his orders, Hussein was served with particulars of evidence regarding events during the strike that implicated him. As such, he saw it prudent that the trade unionist/doctor let the Commission know of his position in relation to each of the items (allegations). Armed with some statements, McKay said that sometime ago, Dr Hussein received documents dated September 13 containing allegations that sought to incriminate him. As a result, he said, his client will rely on Section 12 of the Commission of Inquiry Act, in which provision is set out for him not to answer any questions that may incriminate him, the Senior Counsel said. Turning to the witness, Justice Singh queried whether he had "an apprehension of danger or fear, for not wishing to respond", to which Hussein answered, "No, your honour". When the question was again put to the witness, Senior Counsel Mckay, addressing the Bench, said, "No", and stated that the Judge did not have the authority to question. He added that "real danger or fear" relates to incrimination, and observed that the witness had taken the fifth amendment. Judge Singh then remarked that there is nothing in the Laws of Guyana relating to the fifth amendment, but Senior Counsel McKay refuted that, saying there (such provision) is in the Constitution and the statues. Again the question of "danger or fear" was put to Hussein by the Judge, to which Hussein said that it was in response to allegations that may tend to incriminate him. To that remark, Justice Singh told the witness that the law gives him (Hussein) the right not to incriminate himself. Counsel for the Commission Mr Mortimer Cumberbatch said that he would have liked to question the witness on the allegations against him, but in the circumstances, he was not sure whether it will not be "an act of futility". Cumberbatch declined cross-examination. De Santos then submitted that he was not sure whether the Commission was taking the right view of the issue, and McKay asked whether his colleague was challenging the Commission's ruling. To this, the Judge said he had already ruled that the witness does not want to incriminate himself, but De Santos argued that the witness cannot go into the box and swear to the fifth amendment. According to him, there is no privilege against a witness being asked the question. Justice Singh noted too, that there is nothing preventing cross-examination but Senior Counsel McKay proffered otherwise. De Santos referred to one of the authorities McKay at the previous hearing had submitted to the Commission, the case of Reynolds Ex Parte Reynolds on Incriminating Questions, Privilege, Need for Witness to Show Reasonable Apprehension of Duty, and the Duty of the Court. That authority states, "The extension by a witness that the proposed question might tend to incriminate him, is not sufficient to justify his refusal to answer that question and to entitle him to the privilege of silence. The Court must see from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer. Once it is apparent that a witness is in danger, great latitude should be allowed him in judging for himself the effect of any particular question." De Santos was eventually allowed to cross-examine the witness and he began questioning Hussein by asking whether he remembered the day of June 10, whether he was ever at the Finance Ministry, and how many times he had gone there. The witness admitted being there on more than one occasion, adding that everyday he and protestors would pass there; but he did not remember June 10. However, McKay interrupted when De Santos sought to get Hussein to answer whether he witnessed a confrontation between the Police and crowd on June 10. "You cannot quote June 10 to him (Hussein), McKay remarked, "it is not proper, the question is a false one." More questions followed, among them whether the crowd was peaceful, whether President of the GPSU Patrick Yarde was ever in his company, if he knew Seeta Ramlall, Registrar of the Supreme Court, was he ever in the compound of the Supreme Court, about April 29, whether he knew Dr Ramsammy and if he ever used the assertion, "Let the people die and let the government suffer the consequences." Hussein said he never witnessed any confrontation between the Police and demonstrators. When examined by his Counsel, Hussein said he was not aware when the Inquiry began, nor was he sent a notice to attend. Responding to queries from the Judge, the witness said he was not aware of any notice regarding the start of the Commission of Inquiry, being sent to the GPSU. But Justice Singh referred to notices in the media and Secretary to the Commission, Attorney Joy Persaud, said that she had sent a copy of the notice to the Union headquarters. He remarked that the GPSU had taken an official position that it would not participate in the Commission hearing.
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