Crime amendments face constitutional challenge
November 16, 2002
Idris Deen a former People’s National Congress parliamentarian is challenging the constitutionality of the recently passed amendments to the Prevention of Crimes Act and the Criminal Law (Offences) Act.
The amendments to the Prevention of Crimes Act provide for the Police to monitor the movements of a citizen; to apply to the courts for a citizen to be restricted to a certain area of the country and for the Minister of Home Affairs to designate persons to be under police supervision based on an order from the court on an application by the Commissioner of Police.
The amendments to the Criminal Law (Offences) Act make mandatory the sentence of death on a person who causes the death of another as a result of a terrorist act.
The amendments were part of the anti-crime legislation enacted by the National Assembly intended to strengthen the hands of the Police in the current crime wave. The police say deportees recently returned here make a significant contribution to crime.
Senior Counsel Rex McKay and Keith Massiah and attorney-at-law Gentle Elias filed writs challenging the amendments on Deen’s behalf yesterday.
The challenge to the amendment to the Prevention of Crime Act is on the ground that it is inconsistent with the fundamental rights provisions of Articles 40, 139, 144(8), 148 and 151 of the Constitution and is therefore ultra vires and void by reason of Article 8 of the Constitution.
Article 8 of the Constitution provides that the Constitution “is the supreme law of Guyana and, if any other law is inconsistent with it, that other law shall, to the extent of the inconsistency, be void.”
As a result Deen through his counsel is seeking four declarations. The first is that “the failure of the National Assembly to establish in the Prevention of Crimes (Amendment) Act, 2002 an independent and impartial Tribunal to give effect to the provisions of Articles 148(4) and 151 of the Constitution is inconsistent with the fundamental right of freedom of movement guaranteed by Article 148 of the Constitution and renders the said legislation ultra vires and void by reason of Article 8 of the Constitution.”
The second declaration seeks to invalidate the amendment on the grounds that Section 3A(1) to 3A(5) of the legislation which authorises “the imposition of restrictions as to residence of any person without the establishment of an independent and impartial Tribunal guaranteed under Article 151(1) and (3) of the Constitution is inconsistent with the provisions of Articles 139, 148 and 151 of the Constitution”.
The third declaration is that Section 3 A (2) of the amendment, which authorised the Commissioner of Police to apply ex parte to the High Court for permission to make an application to the Minister of Home Affairs to “designate as subject to police supervision any Guyanese citizen” and impose restrictions as to his residence etc” without giving him an opportunity to be heard before a judge makes an order under the said subsection; and secondly before the Minister designates the citizen “as subject to police supervision” is in breach of Natural Justice, ultra vires, null, void and of no legal effect.
The fourth declaration Deen seeks is that though there are no words in the Act which require that the citizen to be designated by the Minister should be heard, the citizen is entitled to be heard before an order is made by the judge or the Minister designates the citizen as subject to police supervision.
In challenging the constitutionality of the amendment to the Criminal Law (Offences) Act, Deen is seeking three declarations by the Court. The first is that the amendment - Criminal Law (Offences) (Amendment) Act 2002 - is inconsistent with the fundamental rights provisions of the Constitution and is therefore ultra vires and void by reason of Article 8 of the Constitution.
The second declaration states that Section 309A(1)(b) (i) of the amendment is inconsistent with the fundamental right not to be subjected to inhuman or degrading punishment or other treatment guaranteed under Article 141 of the Constitution because it provides for the imposition of a mandatory death sentence in all cases where a terrorist “act has resulted in the death of any person”.
The third declaration he seeks is that the effect of the said section of the amendment - 309A (1)(b)(i) - is the imposition of the mandatory sentence of death where a terrorist act has resulted in the death of a person in circumstances where the death was unintentional and would amount to the criminal offence of manslaughter, under section 94 of the Criminal Law Offences Act Chapter 8:01, the penalty for which is imprisonment.