Updated on Saturday November 5, 2022 at 03:52 by Denis Chabrol
Barrister Tamieka Clarke on Friday asked the High Court to declare unconstitutional the arrest and detention by police of any lawyer for advising a client to remain silent during questioning.
Ms Clarke was transferred to the High Court after being arrested on October 28, 2022 by officers from the Guyana Police’s Special Organized Crime Unit (SOCU) for informing her client, who was charged with computer fraud, of keep quiet.
She sued the Guyanese police for over GY$300,000 for her wrongful arrest and detention by the 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 Section 139 of the Guyana Constitution, was violated by SOCU officers when she was arrested and detained for advising his client to remain silent. Further, she asks the High Court to declare that her fundamental right and freedom from arbitrary arrest, as set forth and provided for in Section 40 of the Constitution of Guyana, has been violated and/or violated by police officers. when they arrested and detained her at SOCU headquarters and that the detention and seizure of her mobile phone by SOCU officers without her permission and lawful excuse was unlawful.
Following the incident involving herself, Barrister Clarke is asking the High Court for a declaration that any barrister practicing in Guyana has the right to inform a client of the client’s right to remain silent when he is questioned by members of any law enforcement agency or agency. in Guyana; has the right to consult his client in private without the content of said consultation being recorded in any way, including by means of audiovisual recording by any law enforcement agency in Guyana or elsewhere , and has the right to advise any person who has requested their counsel to exercise the right to remain silent when questioned by a member of any law enforcement agency in Guyana
Further, in its case against the Attorney General, the High Court was asked to declare that the right to fundamental rights and liberties set forth in Section 40 of the Constitution of Guyana includes the right of every citizen to remain silent when he is questioned by an officer. a law enforcement agency in Guyana; the fundamental rights and freedoms set out in section 40 of the Constitution include the right of access of all arrested, detained or imprisoned persons to the opportunity, time and adequate facilities to be visited and to communicate and consult a lawyer legally, without delay, interception or censorship and in complete confidentiality. Such consultations may be within sight, but not within hearing and/or recording by law enforcement officials; and that the fundamental rights and freedoms set out in Article 40 of the Constitution include the right to have everyone immediately informed by the law enforcement body or authority of their right to assistance by a lawyer of his choice when arrested or detained or when charged with a criminal offence.
With respect to the damages sought, Ms. Clarke seeks over GY$100,000 each for wrongful arrest and detention, wrongful imprisonment by SOCU officers, violation of her fundamental rights and freedoms as set forth in Article 40 of the Guyana Constitution and exemplary damages for the threat. of the arrest of October 25 and the arrest of October 28 for having attempted to pervert the course of justice on the basis of the advice rendered in her capacity as a lawyer admitted to practice in Guyana, to her client to remain silent when questioned by a Guyanese police officer.
The Guyana Bar Association, the Guyana Association of Women Lawyers, the Jamaica Bar Association, the Organization of Caribbean Commonwealth Bar Associations (OCCBA) and the Commonwealth Lawyers Association (CLA) have all condemned the Mrs. Clarke’s arrest by the Guyanese police. She was released the same day – October 28 – on the intervention of Attorney General Anil Nandlall after being contacted by lawyer Shaun Allicock at whose firm Ms Clarke works.
The CLA states, in expressing its very serious concern over Ms Clarke’s arrest, that it fears “the police, who should uphold the Constitution and the rights of citizens, have acted unlawfully and contrary to the ‘rule of law’.
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, August 27-September 7 1990 and state in paragraph 16:
“Governments shall ensure that lawyers are able to perform all of their professional duties without intimidation, hindrance,
harassment or inappropriate interference; and must not suffer or be threatened with administrative, economic or other lawsuits or proceedings.
sanctions for any action taken in accordance with recognized professional duties, standards and ethics”.
Expressing its solidarity with Ms Clarke and the Guyana Bar Association, the Jamaica Bar Association said her arrest and detention “constitute an attack on a fundamental tenet of the rule of law”. “We condemn this action and are very concerned about this assault on the legal profession This is a clear departure from the Constitution of Guyana which enshrines the right to silence during the criminal investigation in accordance with the opinion of the lawyer in the matter. This blatant state encroachment results in the undermining of the rule of law and we will remain closely watchful of this cause,” added the Jamaica Bar Association.
Attorney General Nandlall dismissed suggestions that the action against the attorney was condoned and authorized by a state or government agency. “Let me say unequivocally that this is absolutely 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,” a he told the government’s Department of Public Information. He reiterated that the incident was “regrettable and should never have happened”. He lamented that “aggressive action” was being pursued and questioned the agenda.
Responding to a pre-action letter seeking “exorbitant and excessive” compensation of GY$50 million, he noted that attorney Clarke had spent no more than 10 to 15 minutes in detention.