The state yesterday indicated its intention to substitute the treason charge against Mark Benschop, following a ruling by the presiding magistrate that the matter would be discharged if it failed to do so.
And despite applications by the defence for Benschop's release, and the immediate withdrawal or discharge of the matter, it has now been fixed for commencement on September 16.
This followed submissions on Wednesday, by Special Prosecutor Sanjeev Datadin, who indicated the prosecution's intention to proceed with the inquiry into the joint charge of treason against Benschop and co-accused Phillip Bynoe, as currently laid. Despite earlier instructions by Senior Magistrate Chandra Sohan to either sever or substitute the charge, Datadin made a submission, contending that the preliminary inquiry into the joint charge could proceed, despite Bynoe's absence.
Two arrest warrants have been issued for Bynoe, who has not been seen since July 3, when a procession led by him, violently stormed the Office of the President resulting in the deaths of two persons.
Yesterday, Benschop's defence counsel, including lead counsel Mortimer Coddette, Roysdale Forde, Raphael Trotman and Shaun Allicock, submitted that Article 144 of the Constitution and Section 64 of the Criminal Law Procedures Act (CLPA) Chapter 10:01, did not allow for Datadin's contention. This, it was submitted, would amount to a breach of Benschop's constitutional right.
Considering Datadin's submissions, the magistrate found that the authority he had cited did not relate to the question of whether or not the prosecution could proceed with the inquiry as the charge was currently laid. And the law, he said, did not permit the court to proceed, since both accused would have to be present at the hearing. He said the prosecution's failure to substitute the charge and its indication that it intended to proceed as is, would mean that the court could not proceed. Moreover, he said the court would not be expected to wait for the prompt procedures to be followed by the prosecution. Concluding that it was clear that the inquiry could not commence as the charge currently stands, the magistrate instructed the prosecutor to come up with a substituted charge, which he said, he would expect to be filed very early.
Coupled with the magistrate's announcement that he would proceed on a two-week leave of absence beginning Monday, this prompted calls by the defence counsel for the magistrate to use his discretion to safeguard the accused from oppression. It was argued that as a creature of statute, the court could not continue to hold Benschop without bail if the prosecution could not proceed with the charge and further, the magistrate would be compounding a wrong if he continued to do so. Benschop's confinement, it was posited, is not recognised by the legislation since he was being held on a non-charge. And while the magistrate noted that the charge was not itself bad in law but rather, it merely prevented the commencement of the PI, it was contended that the charge was offensive to Benschop since it denied him his constitutional right and, if only to preserve the purity of the law, he should not be held on the charge.
The defence described the situation as a conundrum, since, despite Datadin's undertaking to substitute the charge, the existing charge was not withdrawn and the court would now be faced with two charges. It was proffered that Datadin could withdraw the charge and leave it to the DPP to substitute one.
The magistrate indicated that he would expect the prosecution to be ready at least by the time he returned from his leave of absence, failing which, he would respond to the submissions of the defence.
With regard to the claims by defence, of Datadin taking advantage of a technicality, which was both unfair and prejudicial, abusing his power and manipulating the process of the court, the magistrate found that there had been no abuse. In reference to claims that Benschop's constitutional rights were being abused, the magistrate observed that there were persons charged with lesser offences who have been languishing in jail for weeks, months, and even years, noting that he had given an undertaking to give the case priority.
Prior to Benschop's exit from the courthouse, there were several instances where numerous persons breached the police barricades barring access to the courtyard, ignoring the warnings by ranks.
In one instance an elderly woman fell and had to be lifted from the scene after seemingly injuring one of her legs during the scramble to cross the barricades. There was a heightened police presence yesterday, now the norm with the preliminary hearings, as well as the intense scrutiny of persons entering the courthouse.