IN our legal system, the holder of the Office of the Attorney General is the protector of the public’s legal interest and the defender of the Constitution of Guyana. It is in the discharge of these responsibilities that I view with deep concern the Order issued by a Judge of the High Court of the Supreme Court of Judicature against a newspaper enjoying daily circulation in Guyana, preventing the said newspaper from publishing matters which may or may not be relevant to a case which is on trial before the said Judge.

I am of the respectful view that this ruling may be in collision with freedom of expression and its fundamental adjunct, freedom of the press, a fundamental right guaranteed by the Constitution, our supreme law.
Freedom of expression is indeed an indispensable ingredient of a democratic society. My philosophy on this issue coincides with the sentiments expressed by that distinguished Indian Jurist, Justice Beg, who remarked in the well-known case of Bennett Coleman & Co Ltd v Union of India (1973) AIR 106 at 149:
“Political philosophers and historians have taught us that intellectual advances made by our civilisation would have been impossible without freedom of speech and expression. At any rate, political democracy is based on the assumption that such freedom must be jealously guarded…Champions of human freedom of thought and expression, throughout the ages have realised that intellectual paralysis creeps over a society which denies, in however subtle a form, due freedom of thought and expression to its members.”
The ruling to which I have made reference emanates from a case filed by the National Industrial Investment Company Limited (NICIL) against Royal Investments Limited. NICIL is seeking to recover from Royal Investment Limit, monies due and owing in respect of the sale of Guyana Stores Limited, a State owned entity. The monies which are being sued for are public funds. The articles which were published by the newspapers sought to disseminate information which largely was extracted from the Annual Reports of Guyana Stores Limited, a public company that has approximately 1500 hundred shareholders.
Significantly, the very Annual Reports are required by the Guyana Securities Industries Act, Cap 85:09 and the Companies Act (1991), Cap 89:01, to be filed with the Guyana Securities Council and the Registrar of Companies, respectively, as public records, and are public documents and therefore, information to which the public is constitutionally entitled.
In the circumstances, I am of the respectful view that the learned judge fell into error by issuing the said “gag”order.
I express this view cognisant of the sagacious words of Lord Atkin in Ambard v Attorney General (1936):
“But whether the authority and position of an individual Judge or the due administration of justice is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising in good faith, in private or public, the public act done in the seat of justice. The path of criticism is a public way: the wrong headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune, Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”
And the similar sentiments of Lord Denning, MR, on the right to criticise the Judiciary:
“It is the right of every man, in Parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a Court of Justice. They can say we are mistaken, and our decisions erroneous, whether they are subject to appeal or not.” (R –v- Commissioner of Police of the Metropolis 1968, 2Q.B. 150 at 154)
It is my view that the information which the newspaper was prohibited from publishing, are indeed matters of public interest. It involves public funds. The disclosures are from public records. Even the trial itself, is a public hearing under Article 144 (9) of the Constitution of Guyana. I recall the thousands of cases before which received wide and glaring coverage in the press without a like prohibition from a judge or anyone else.
I respectfully feel that the order issued by the learned judge cannot be supported by legal principles. It is my respectful opinion that it is a misuse, if not an abuse, of the “sub judice” principle. I am fortified in this view by the decision in the landmark English case, Wallersteiner –v- Moir. (1947) 1 WLR 991.In this case, a director of a company tried to stop criticisms of him by shareholders. He issued a writ against them. He then sought to shut them up by contending that the matter was “sub judice.”Lord Denning posited the law to be thus, at page 1004- 1005:
“I know that it is commonly supposed that once a writ is issued, it puts a stop to discussion. If anyone wishes to canvass the matter in the press or public, it cannot be permitted. It is said to be “sub judice.” I venture to suggest that it is a complete misconception. The sooner it is corrected the better. If it is a matter of public interest, it can be discussed at large without fear of thereby being in contempt of court. Criticisms can continue to be made and can be repeated. Fair comment does not prejudice a fair trial.”
Justice Salmon in Thomson –v- Times Newspaper Ltd. (1969) 1WLR 1236, puts it even more succinctly:
“The law says- and says emphatically- that the issue of a writ is not to be used so as to be a muzzle to prevent discussion.”
I respectfully posit that the legal principles as adumbrated in the cases cited above will apply with even greater force in a system like ours where freedom of the press is guaranteed as a fundamental right by the Constitution, the supreme law of the land. No procedural rule or common law principle can withstand the might of the written word of the Constitution. As Justice Vieira enunciated in Re Patricia Whittington(Unreported, 1978):
“Even the glory of the Common Law must bend and bow at all times whenever there is a conflict, apparent or real, with the Constitution.”
I express these views not unmindful of the principles regarding the need to guard against publications which may prejudice a fair trial. However, those principles are more applicable in respect of a criminal trial where that which is published may have some likelihood of influencing the legally untrained mind of a juror. They will have little, if any relevance at all, to a case where a trained judicial mind is the sole arbiter of both the facts and the law, as is the position with the case under review. Clearly, a judge ought only to be influenced by that which is said and done in the Court and not by publications in the press or, indeed, anything else.
For the avoidance of doubt, my respectful comments are not intended in any manner whatsoever to bring the Administration of Justice into disrepute or to attribute any ulterior motive to it. They are simply made in defence of the Constitution of Guyana and in the protection of the public’s legal interest.