The Guyana Bar Association has strong reservations about the constitutionality of various provisions in the crime fighting bills now before Parliament and has communicated its concerns to the Attorney General.
The association is therefore urging the government to reconsider pursuing the passage of the proposed legislation in its current form. Parliament is to meet tomorrow to debate the four bills. The association is objecting to the provisions in the Prevention of Crimes (Amendment) Bill and the Criminal Law (Offences) (Amendment) Bill. The other two bills that were tabled in Parliament are the Racial Hostility (Amendment) Bill and the Evidence (Amendment) Bill.
At a press conference yesterday at the GBA headquarters, attorney-at-law Nigel Hughes, GBA president, said the association believes that the Prevention of Crimes Bill - commonly referred to as the deportee bill - "collides very violently with certain constitutional safeguards which have been set up and provided for in the constitution."
He noted that the explanatory memorandum of the bill states that it "seeks to introduce legislation that allows Guyanese convicted of certain offences in a foreign state and who are deported to Guyana to be effectively monitored by the police."
Hughes, said in particular, the bill gives the minister designated under the act, judicial and legislative power, which he cannot properly exercise constitutionally.
Another objection, is the fact that the bill is not limited to persons who have been convicted and deported but to a person who elects to return to Guyana "in lieu" of deportation i.e. may have no criminal record in a foreign state, can be treated as a convicted person when sentenced. "...And that we believe is unacceptable and it is a severe challenge to freedoms that are guaranteed by the constitution."
In reference to the Criminal Law (Offences) Bill, which deals with the definition of terrorism, Hughes said that this bill also, "provides very serious challenges to the freedoms we enjoy under the constitution. To start with..., it provides for the mandatory death penalty in the cases of conviction where somebody has died as a result of a terrorist act." Hughes said, "There are a series of cases coming out of the Privy Council recently dealing with West Indian legislation that states that sentencing is solely the province of the judiciary and not the legislature or the executive."
The provisions of Section 309 A (1) (b) of the bill states, "Whoever commits a terrorist act commits an offence and shall (i) if such offence has resulted in death of any person, be punishable with a fine of one million five hundred thousand dollars together with death."
"But more importantly and of greater concern to us is the fact that the death penalty is now available for offences which traditionally we would call manslaughter, and is not available normally for manslaughter offences, but even offences that require lesser intentions," Hughes said.
Further, there is no categorisation, the association says, of the various acts of terrorism. Thus a person who burns an effigy of religious and/or cultural importance to a section of people and causes the disruption of services essential to the life of the community (e.g a strike) is now guilty of the offence of terrorism and liable to imprisonment for 15 years.
It is felt that this section also collides with the protected fundamental right of assembly and association as set out in Article 147 of the Constitution.
Hughes made it clear that the GBA's objections are not based on the fact that parliament has the right to pass legislation, but it has to do within the confines of the constitution.
"Parliament could do what it wants once it does so within the constitution," Hughes said.
"We do want to make one comment however, that the schedule of offences referred to in the Criminal Law (Offences) bill, in effect refer only to the trafficking in narcotics and possession of a fire arm.... We would have thought that the schedule might have extended also to money laundering," Hughes said.
The association's objections were delivered to Attorney General, Doodnauth Singh on Monday.