1. The Criminal Law (Offences) (Amendment) Bill 2002 that is expected to prevent acts of violence and destruction of property.
2. The Prevention of Crimes (Amendment) Bill 2002 that is expected to have Guyanese deportees monitored by the Police.
3. The Racial Hostility (Amendment) Bill 2002 that increases the punishment for offences effected under the principal law.
4. The Evidence (Amendment) Bill 2002 provides for the admissibility of documents generated by the computer as well as other documents inclusive of disc, tape, sound track, or other mechanisms. This Bill is quite appropriate at this time, as the evidentiary scope within the criminal justice system needs to keep pace with technological advances in the production of electronic documents.

One newspaper refers to the Government’s expeditious passage of these four anti-crime bills which contain problems and could be subject to constitutional challenge in the future. Constitutional challenges to laws are not an aberration, but quite a normal judicial process in all democracies. The judiciary has responsibility for interpreting the nation’s laws, and has the power to declare any law unconstitutional. The U.S. Supreme Court superbly executes this function.

Criminal Law (Offences) (Amendment) Bill 2002
The Criminal Law (Offences) (Amendment) Bill 2002 had its genesis since 1895. This Bill seeks to define a terrorist act, and its basis is sourced from the universal models of legislation on terrorism, inclusive of both the Commonwealth and the Caribbean. The Bill does not seek to infringe any fundamental rights of expression and assembly. In any case, none of these rights is absolute, as these rights are not intended to subjugate the interests of public safety, public order, public morality, and defence.

Some concerns have been voiced on this Bill. In fact, it is erroneously suggested that the Criminal Law (Offences) Bill 2002 refers only to narcotic trafficking and firearm possession, and should also have included money laundering. This concern is baseless. The Bill refers to these offences, among others, as follows: using bombs, dynamite or other explosive or inflammable substances, lethal weapons or poisons or noxious gases, or other chemicals or any other of a hazardous nature, or by any other means whatsoever.

Further, Guyana already has a money laundering law to address any offence of this nature. Why would you then want to include it in the Criminal Law (Offences) (Amendment) Bill 2002 when the law already exists?

Here is another contention. This same newspaper posits a very disturbing notion which smacks of minimum understanding of what constitutes a crime. Here is the notion: if the gunmen are arrested and could be charged for murder under the existing laws, and such laws have not deterred them from committing increasing acts of violence, why would we think that the Criminal Law (Offences) Act would produce this deterrence? Guyana, prior to the passing of this Bill in the National Assembly, has had no law that carries the death penalty for a terrorist act. The death penalty, under current laws, exists for crimes other than those involving terrorism. This new Act mandates the death penalty for a convicted terrorist. Terrorism includes taking human lives but is not solely confined to human killings; terrorism incorporates other types of heinous crimes, as indicated in the aforementioned ‘terrorist’ offences. It may be useful to note here that an act or omission of an act alone is insufficient to constitute a crime. The law calls for ‘intent or mens rea’, in order to establish culpability. The new Act does help with determining intent through its definition of ‘terrorism’.

Another contention concerns sentencing. It is quite outlandish for some to say that sentencing is the exclusive preserve of the judiciary, and quite exclusive of the executive or legislature. There are three branches of the political system - executive, legislature, and the judiciary. These branches symbolise the separation of powers among the legislature, executive, and the judiciary. But in practice, each of these powers is checked by another branch.

For example, in the U.S., the President (executive) appoints judges (part of judiciary), among others. These appointments are approved by the Senate (part of legislature). The President has veto powers over laws passed by Congress (part of legislature). The Supreme Court (part of judiciary) can interpret a law to be unconstitutional. The Congress can make amendments to the Constitution. These really are checks and balances in action.

This application of a muddled separation of powers is by design because the doctrine of separation of powers ensures that each branch’s powers are limited by another branch. Also, the idea of forcing each branch to be accountable to the other assures that that no one branch of the political system can have enough power to dominate the other branches. So politically, the doctrine of separation of powers guarantees that no one branch, be it executive, legislature, or judiciary, can control the other.

But, indeed, the judiciary has some control over sentencing, but its powers are checked by the watchful eyes of the executive and the legislature. A sentence refers to a judge or jury’s decision based on statutory law, determining the punishment for an offender after conviction. In the final analysis, it is the law emanating from the legislature that primarily drives a judge’s decision and discretion in decision-making. Therefore, it’s nonsense to talk about ‘sentencing’ being the exclusive preserve of the judiciary. It should be noted, too, that there is no discretion where death is statutorily determined to be the punishment.

Prevention of Crimes (Amendment) Bill 2002
The Minister, it is claimed, cannot exert judicial and legislative powers constitutionally, but which functions, however, are given by the Prevention of Crimes (Amendment) Bill 2002. This is another area of concern raised. The claim made is that the Minister may determine whether a person can be detained at a police station or prison, in a manner in which due process for the deportee may not be applied. The new Act stipulates that the Minister can issue the order for supervision only after the Commissioner of Police has applied to the High Court for permission. If permission is granted, then the Commissioner of Police can make such an application to that Minister. The judge, however, has to be satisfied about the appropriateness of making such an application to the Minister, before granting permission to the Commissioner of Police through the issuance of a certificate. If the judge rejects the Commissioner of Police’s application, then that’s the end of the matter, and at least, in this case, the Minister cannot issue an order on this deportee in question.

An important point to note is that the current law determines that only Guyanese convicted of an offence within Guyana becomes liable for police monitoring. This has happened to a large number of people subjected to weekly ‘Eve Leary’ supervisions during the aggressive and over-zealous implementation of the infamous National Security Act during the PNC’s ruling years. Additionally, the Prevention of Crimes (Amendment) Bill 2002 is based on Jamaican jurisprudence on deportees.

US Criminal Deportees
Let’s examine the source of the US criminal deportation. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of the US signed into law by President Clinton on September 30, 1996, introduced sweeping changes in immigration policy since the 1920s.

Criminal deportees from the US to Guyana and the Caribbean have been convicted of aggravated felonies. Crimes of violence are murder, physical assaults, drug trafficking crime, and illicit trafficking in firearms or destructive devices. Other crimes of violence considered aggravated felonies are felony drunk driving; aggravated driving under the influence; arson; involuntary manslaughter; criminal contempt; criminally negligent child abuse; sexual abuse of a minor; and statutory rape. These are all deportable offences for both legal permanent residents (Green Card Holders) and illegal immigrants.

Criminal deportees from North America have been a factor among other factors in the new crime wave in Guyana and the Caribbean. Indeed, criminal deportees have been intensively socialised in the criminal fields in the US. These deportees are in full possession of their US criminal tool kit. Indeed, their criminal training in a developed society gives them an advantage in the pursuit of criminal activities over Guyana’s local petty home-grown criminals.

Griffith (2000) pointed out that criminal deportees have produced an upward change in crime trends in Guyana. In fact, Nolan and Rosales (1998) noted that a large number of deportees are hard-core criminals, and their return to their home countries has contributed to gang violence and to increased drug-trafficking in the region. Taylor and Aleinikoff (1998) indicated that foreign diplomats report that the return of deportees is the main reason for penetratingly rising crime rates in the Caribbean and Central America. An official at the daily Gleaner said that “the island suffered one of its bloodiest years in 1996 in part because of the return of dangerous criminals. The 925 people murdered topped the 889 people killed in 1980 during the island’s worst election year” (1999).

Deportees with such criminal backgrounds who are posted back to Guyana and the Caribbean invariably will continue with the criminal lifestyles learnt in the US. The deportees’ criminal activities in Guyana have not comprehensively been presented to the public. Clearly, a network of relationships grounded in criminal behaviour exists among some deportees. Network rather than individually-produced crimes tend to have greater sustainability and productivity, and therefore, the network factor must be injected in any crime-fighting tactics and strategy.

CARICOM’S FIGHT AGAINST TERRORISM
Recognising the crime wave in the Caribbean, CARICOM Heads at the Nassau Declaration on International Terrorism in October 2001, had this to say, “…To this end, the Conference has mandated a review of all, relevant and regional and international conventions in order to ensure the widest possible adherence to them by CARICOM governments. We will also accord the highest priority to the enhancement of existing national legislation relating to security in all its dimensions and to the enactment of new laws, as required.”