Hussein escapes prosecution - to testify at next sitting
Guyana Public Service Union (GPSU) executive Dr Anwar Hussein has avoided a possible $500 fine and a maximum of six months imprisonment, following a decision by Justice Carl Singh not to prosecute him for his refusal to testify in front of the body. The judge's decision was made yesterday morning following legal arguments by Senior Counsel Rex McKay, one of three lawyers who accompanied Hussein into court yesterday. Hussein, making his first appearance since the Commission started sitting at the Public Service Appellate Tribunal, Brickdam, was wearing a neck brace following a whiplash injury he suffered in a recent accident. Backed up by Senior Counsel Ian Chang and Fitz Peters, McKay contended, among other things that the proper procedure had not been followed when Hussein had been subpoenaed on Saturday. On that day, Hussein minus the neck brace he wore to court yesterday, was said to have told a constable who went to summons him that he was on sick leave. On Monday, the day he was supposed to have appeared in court, the constable testified that he had seen Hussein at the Brickdam Police Station and that the doctor had ignored him when he reminded him of his court appearance. However, yesterday, McKay pointed out that when someone is implicated by another's testimony in front of a Commission, it is common practice, if not the law, to have that person served with the incriminating statements along with the subpoena. The senior counsel charged that this had not been done in the case of Dr Anwar Hussein and further pointed out that the subpoena itself had never been served on Dr Hussein, but instead had been received by his painter. This ran counter to the testimony of the constable, which McKay acknowledged by noting that what the policeman had said had been taken as gospel but that his client had never been heard by the Commission. Questioned by Justice Singh as to how Hussein could be heard without first appearing and testifying, McKay countered that, at the same time, he could not be convicted and then made to testify. The lawyer then went on to quote from Section 13 of the Commission of Enquiry Act, the same act under which the Judge had ordered his prosecution. The section in question stated that "Any person...who is in any way implicated or concerned in the matter under Inquiry shall be entitled to be represented by counsel..at the whole of the Inquiry". Again, McKay charged that this opportunity had not been afforded his client. He acknowledged Justice Singh's point that reports of the proceedings had been appearing in the press and that Hussein could have acted on this but noted that one could not simply walk into a courtroom and say "I am representing Hussein". Proper procedure, the lawyer argued, would be for Hussein to be informed about the relevant matter. This, he said, had not been done in Hussein's case and repeated his request that all statements implicating Hussein be turned over to him. By way of explanation, Justice Singh pointed out that Hussein's testimony had only been sought in relation to a specific incident set out in the Commission's Terms of Reference - namely the forced entry by police ranks into the GPSU hall. The Commission has yet to hear testimony on this matter since, according to Singh, the Police Force have nothing to reply to. The Commissioner explained that, in the absence of (GPSU President) Patrick Yarde who is out of the country, he had sought Hussein's testimony in relation to this incident. His reasoning, he said, had been that any testimony given by Hussein would have necessitated a police response, adding to the completeness of the enquiry. He acknowledged that this had been done against the background of the GPSU's stated desire not to participate in the Commission of Enquiry but noted that he did not consider that the union's position should preclude him from exercising his coercive powers as Chairman. This point was deemed salient by McKay but the lawyer still noted that the GPSU, and not Hussein, had indicated its non- participation and as such (the Commission) should not sever his rights along with that of the GPSU. He further expressed incredulity that the police had taken no statements concerning the alleged forced entry incident and its aftermath. The lawyer then turned his attention to the evidence before the Commission concerning Hussein's alleged refusal to testify. That evidence comprised mainly of the testimony of the constable and that of a doctor who treated Hussein for the whiplash injury that McKay said he was still suffering from. That doctor had, on Tuesday testified that Hussein could have come to the witness box from the time of the diagnosis (August 26) to his scheduled date of appearance. Yesterday, however, McKay tendered a second medical certificate prepared by another doctor showing that Hussein could still benefit from more sick leave. He then noted that the Commission did not have enough evidence to find that there was no sufficient cause for Hussein to stay away from the Commission. He also expressed doubt that the DPP, who is representing the police in the enquiry and was present yesterday in court, had the power to prosecute Hussein for refusing to testify. For his part, Singh, while expressing faith in the validity of his judgements, noted that any mistakes made would serve as precedents to be avoided by future Commissions. He however pointed out to McKay that it appeared as if Hussein had only deemed it wise to come to court after reading about the impending prosecution. He remarked that Hussein's action in apparently disregarding the subpoena to attend to personal business at the Brickdam Police Station lent itself to the perception that he had scant regard for the Commission. McKay gave the assurance that the doctor would give evidence in front of the commission of enquiry but noted that he would be exercising his option to "take the Fifth". This referred back to McKay's earlier argument when he had pointed out that, in keeping with Section 12 (3) of the Commission of Enquiry Act, a person could not be compelled to give evidence incriminating himself. While all this drama was taking place in the courtroom, a handful of people who identified themselves as health workers and public servants, gathered in front of the tribunal . They claimed to be there to support Hussein. Slightly after 1000 hrs, a police vehicle containing less than five officers showed up at the tribunal, and after questioning the crowd about their purpose there departed the scene. The security around the building was then increased by about four or five officers presumably from the nearby Brickdam Police Station who kept an eye on the crowd which contented itself with occasionally singing inspirational songs. They broke from this practice to hurl taunts at one police officer when he exited the building and then resumed their inspirational songs with renewed fervour when Hussein exited the building. The doctor was greeted by chants of who God bless let no man curse by the mostly female crowd. Hussein, accompanied by his legal team emerged from the building after Justice Singh promised to consider many of the additional argument made by McKay and to extend the Commission's sittings. Thus, despite the fact that yesterday was expected to be the final sitting of the Commission of Enquiry, September 13 will see Hussein make an appearance at the hearing.
|