Latest update March 29th, 2024 12:59 AM
Nov 25, 2014 Editorial
The recent decision of the High Court that the Paper Committal law which amended the Sexual Amendment Act is unlawful has a number of repercussions and leaves a number of questions unanswered.
Among them are that all those who were charged under the said Act and even those convicted would now have to be freed or have a new trial using the old Act.
It also asked the question as to what our law makers in Parliament which is made up of a number of lawyers on both side are doing. Why are they making laws that run directly in conflict with the constitution?
When the law was first amended it was never discussed with the lawyers or their representative body. When that was thrown out by the high court the new amendment to the amendment was never discussed or taken to the Bar Association for its input, thus the limbo.
Recently Attorney at Law Murseline Bacchus successfully challenged the amendment to the Sexual Amendment Act in the High Court. Bacchus moved to the High Court after Magistrate Sherdel Isaacs-Marcus committed his client Ray Bacchus to stand trial in the High Court on the amended Sexual Offences Act. His client Ray Bacchus was charged indictably on August 28, 2013 for engaging in sexual penetration of a child of 14.
Bacchus had contended that the amendment to the Act was unconstitutional. He moved to the court and sought an order or rule nisi of certiorari directed to the Director of Public Prosecution, the Commissioner of Police and Magistrate Isaacs-Marcus to show cause why her decision should not be quashed on the grounds that it is null, void, unlawful and unconstitutional.
The act, when it was first amended in 2010 read- “For the purpose of a paper committal, only the evidence of the Prosecution shall be allowed.” After this was thrown out by the courts it was amended to read, “For the purpose of a paper committal, credible evidence of the Prosecution and the defence shall be allowed.” The new law thus took away the right of the client to call and cross examine witnesses for the defence.
The Chief Justice in his ruling looked at what was presented before him and what is provided for in the Constitution. He stated that Section 43 of the Sexual Offences Act 2010- provided that, “where a person is charged with an offence under the Act, there shall be no oral preliminary inquiry and instead, a paper committal shall be held in accordance with the procedure set out in the first schedule.”
However, this act is inconsistent with article 144(1) and 144(2) of the Constitution which reads, “Every person who is charged with a criminal offence-shall be permitted to defend him or herself before the court in person or by a legal representative or his or her own choice.”
“The person shall be afforded facilities to examine in person or by his or her legal representative the witnesses presented by the Prosecution before the court, to obtain the attendance and carry out the examination of witnesses to testify on his or her behalf before the court on the conditions as those applying to witnesses called by the Prosecution.
The Chief Justice thus concluded that it is difficult to see how a person charged, can defend him or herself personally before the court unless he or she is at liberty to dispute the evidence of the prosecution witness either by cross- examining the prosecution witnesses who have made statements tendered as evidence before the court or his own behalf.
A senior lawyer stated that when he first heard of the amendment, he told the Attorney General (AG) that something is still not correct and should be looked at.
Now that Parliament has been suspended by the President, nothing can be done to the Act and the situation remains in limbo.
The country awaits the next move.
THIS IDIOT TELLING GUYANA WE HAVE NO SAY IN THE 50% PROFIT SHARING AGREEMENT WE HAVE WITH EXXON.
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