GEORGETOWN, Guyana, CMC – Chief Justice Roxane George-Wiltshire Friday ruled that criminal defamatory libel is unconstitutional and violates the enshrined right to freedom of expression as she dismissed the case of criminal defamatory libel against the New York-based Guyanese political activist, Rickford Burke.
The Chief Justice said Section 115 of the Criminal Law Offences Act, including conspiracy to commit such an offense, is “unconstitutional as violating Article 146, which guarantees freedom of expression.
“It is declared that the resort to criminal defamatory libel to protect individual reputation is unnecessary, disproportionately excessive and not justified and or required to protect reputations, rights, and freedoms of other persons and are unconstitutional as violating Article 146, which is the freedom of expression provision in our constitution,” she said.
The charge of criminal defamation dates back to December 3, 2021, when the Guyana Police Force (GPF) issued a wanted bulletin for Burke, citing offenses under various acts, including the Racial Hostility Act, the Cyber Crime Act, and the Criminal Law Offences Act.
On September 29, 2022, another wanted bulletin was issued in connection with Conspiracy to Commit a Felony under the Criminal Law (Offences) Act.
Charges were formally filed on August 18, 2023, at the Vigilance Magistrate’s Court. However, Burke, who resides in the United States, did not appear in the court proceedings. In response, the Magistrate ordered the preparation of a ‘defendant summons’ to compel Burke’s attendance on March 28, 2024.
However, Burke, who Senior Counsel Roysdale Forde represented during the High Court proceedings, has in the past “categorically denied” being served with a Guyana police-issued court summons to attend court on charges related to extortion, sedition, and inciting public terror.
“The Guyana Police Force is engaged in egregious lies, serious illegal conduct, and fraudulent activities,” said Richard Millington, an attorney who serves as of the Caribbean Guyana Institute of Democracy (CGID) director of communications, said then.
“Mr. Burke was never served with a document and did not sign for or accept a document.,” he said in a statement, noting that “gunmen left pieces of paper on Mr. Burke’s steps, which were retrieved and taken as evidence by the NYPD (New York Police Department).
Justice George-Wiltshire said she was bound to consider human rights conventions and the learning from Article 39, much of which has criticized criminal defamation.
She stated that several Caribbean countries, including Grenada, Jamaica, Antigua and Barbuda, and Trinidad and Tobago, have abolished criminal defamation after lobbying efforts, particularly by journalists.
The Guyana Press Association (GPA), together with the Inter-American Press Institute (IAPI), have been lobbying for the repeal of criminal defamation legislation here.
Justice George-Wiltshire, in delivering her ruling, questioned how Burke, the CGID president and who has been living in the United States for the past 27 years, could have committed the offense in Lusignan, East Coast Demerara.
She stated that it was evident the prosecution did not inform Magistrate Fabayo Azore that Burke was not in Guyana and could not have been at Lusignan, as stated in the charge.
“If this were disclosed to the magistrate, then she most likely would have declined to have issued the summonses issued under her hand,” The Chief Justice said.
Assistant Superintendent of Police Rodwell Sarabo, who was tasked with locating Burke, said he visited Lot 1 Fellowship, West Coast Demerara, Burke’s last known address here, but did not locate him.
The court was informed that on December 13, 2023, the senior police officer traveled to the United States with the originals of the summonses and met with a US process server. Three days later, they went to an address in Brooklyn, New York, where they met Burke, who refused to accept the documents, and the Process Server left them on the accused’s doorstep.
But the Chief Justice noted that Burke’s residing in the US for the past 27 years has not been refuted by the State by such means as immigration records, and in quashing the Guyana Police Force’s effort to serve Burke with a summons in the US, pointed out that a summons shall “have full force and effect and may be served anywhere within Guyana.
“Therefore, the summons only has efficacy within the geographical boundaries of Guyana. Service of a summons outside the jurisdiction of Guyana means that such service would be unlawful and therefore invalid,” she said.
Justice George-Wiltshire said the Magistrate admitted to Burke’s contention that the summons is only effective within the jurisdiction of Guyana, adding it does appear that what was done was more akin to service of civil proceedings and even then, whether such service is acceptable depends on the rules of court.
and then 