Last Updated on Saturday, 5 November 2022, 3:52 by Denis Chabrol
Attorney-at-Law Tamieka Clarke on Friday asked the High Court to declare as unconstitutional the arrest and detention by police of any lawyer for advising a client to remain silent during questioning.
Ms Clarke moved to the High Court after she was arrested on October 28, 2022 by agents of the Guyana Police Force’s Special Organised Crime Unit (SOCU) for informing her client, who has been accused of computer-related fraud, to remain silent.
She sued the Guyana Police Force for more than GY$300,000 for her wrongful arrest and detention by police and the temporary seizure of her mobile phone without justification.
Ms Clarke wants the High Court to declare that her fundamental right to personal liberty as guaranteed and protected by Article 139 of Guyana’s Constitution was breached by SOCU officers when she was arrested and detained for advising her client to remain silent. Further, she is asking the High Court to declare that her fundamental right and freedom against arbitrary arrest as set out and provided for in Article 40 of Guyana’s Constitution was breached and/or violated by police officers when they arrested and detained her at SOCU’s headquarters and that the detention and seizure of her cellular phone by SOCU officers without her permission and without lawful excuse was wrongful.
Stemming from the incident involving herself, Attorney-at-Law Clarke is seeking a High Court declaration that any lawyer practicing in Guyana is entitled to advise a client of the Client’s entitlement to remain silent when being questioned by members of any law enforcement agency or body in Guyana; is entitled to consult with his/her client in private without the contents of the said consultation being recorded in any way including by means of audio visual recording by any law enforcement agency in Guyana or elsewhere, and is entitled to advise any person who has sought her counsel to exercise the right to remain silent when questioned by a member of any law enforcement agency in Guyana
Additionally, in her case brought against the Attorney General, the High Court has been requested to declare the entitlement to the fundamental right and freedoms as set out in Article 40 of Guyana’s Constitution includes the right of any citizen to remain silent when questioned by an officer of a law enforcement agency in Guyana; the fundamental rights and freedoms as set out in Article 40 of the the Constitution includes the right of access of all arrested, detained or imprisoned persons to be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with an Attorney at law, without delay, interception or censorship and in full confidentiality. Such consultations may be within sight, but not within the hearing of and or recording by , law enforcement officials; and that the fundamental rights and freedoms as set out in Article 40 of the Constitution includes the right that all persons are immediately informed by the competent law enforcement agency or authority of their right to be assisted by an Attorney at law of their own choice upon arrest or detention or when charged with a criminal offence.
In terms of the damages being sought, Ms Clarke wants more than GY$100,000 each for wrongful arrest and detention, false imprisonment by SOCU agents, breach of her fundamental rights and freedoms as set out in Article 40 of Guyana’s Constitution and exemplary damages for the threat of the arrest on October 25 and for the arrest on October 28 for attempting to pervert the course of justice on the basis of the advice rendered in her capacity as lawyer admitted to practice in Guyana, to her client to remain silent when questioned by an officer of the Guyana Police Force.
The Guyana Bar Association, Guyana Association of Women Lawyers, Jamaica Bar Association, Organization of Commonwealth Caribbean Bar Associations (OCCBA) and the Commonwealth Lawyers Association (CLA) have all condemned the Guyanese police arrest of Ms Clarke. She was released the same day- October 28- on the intervention of Attorney General Anil Nandlall after he was contacted by Attorney-at-Law Shaun Allicock in whose Chambers Ms Clarke works.
The CLA states, in expressing very serious concern about Ms Clarke’s arrest, expressed concern that “the police, which should uphold the Constitution and the rights of citizens, have acted unlawfully and contrary to the rule of law.”
The CLA recalls that the Basic Principles on the Role of Lawyers (Basic Principles) were Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27th August to 7th September 1990 and state at paragraph 16:
“Governments shall ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance,
harassment or improper interference; and hall not suffer, or be threatened with, prosecution or administrative, economic or other
sanctions for any action taken in accordance with recognized professional duties, standards and ethics.”
In expressing solidarity with Ms Clarke and the Guyana Bar Association, the Jamaica Bar Association said her arrest and detention “is an attack on a fundamental principle of the rule of law.” “We condemn this action and are very concerned about this assault on the legal profession It is a clear departure from the Constitution of Guyana which enshrines the right to silence in the course of criminal investigation consistent with the advice of counsel in the matter. This gross encroachment by the State has the result or undermining the rule of law and we shall remain carefully attentive in this cause,” the Jamaica Bar Association added.
Attorney General Nandlall rejected suggestions that the action against the lawyer was being condoned and authorised by a State or government agency. “Let me state unequivocally that that absolutely is not true. There is no policy of our government that will ever be subversive to the rule of law or the constitution or the constitutional rights of Guyanese,” he said on government’s Department of Public Information. He reiterated that the incident was “regrettable and it should never have occurred.” He bemoaned “aggressive action” being pursued and questioned the agenda.
Responding to a pre-action letter in which an “exorbitant and excessive” GY$50 million compensation was being demanded, he noted that Attorney-at-Law Clarke spent no more than 10 to 15 minutes in detention.
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