Two pieces of anti-crime legislation enacted by the government on September 26 contain provisions that violate international human rights standards to which Guyana is a party, according to Amnesty International (AI).
AI did an analysis of the two pieces of legislation - the Criminal Law Offences (Amendment) Act 2002 and the Prevention of Crimes Amendment Act 2002.
The laws were enacted as part of the measures being taken by the government to combat the wave of violent crime gripping the country.
AI says that it recognises that violent criminal acts such as those occurring in Guyana cause shock, outrage, and grief and give rise to strong public demand for the punishment of the perpetrators and the prevention of further attacks. But it stresses the need for states to remain vigilant against human rights infringements as they put in place measures to protect their citizens.
As a consequence AI is calling on “all elected representatives to work together to produce a national plan on crime with the protection of human rights at its heart.”
In the discussions with the Social Partners, a review of these two laws was down for discussion between the parties with the aim of enacting any amendments if necessary.
In a report AI has published on Human Rights and Crime Control in Guyana, it urged the Guyana government to adopt a clear definition of terrorism, which clearly sets out the conduct that is proscribed and does not unduly or inadvertently restrict rights such as those of freedom of association, expression and peaceful assembly.
AI is also again urging the government to abolish the death penalty and recommends that pending its abolition it should implement Guyana’s binding obligations under international law with immediate effect including the immediate implementation of the UN safeguards guaranteeing the protection of the rights of those facing the death penalty, which guarantee adequate opportunity for defence and appeal and prohibits the imposition of the death penalty when there is room for alternative interpretation of the evidence.
It also recommends to the government that it should not permit the arrest and detention of persons unless they are charged with recognisable criminal offences promptly and tried within a reasonable period in proceedings that comply fully with international fair trial standards. This was in reference to the Prevention of Crimes (Amendment) Act 2002 which is intended to allow the police to keep track of certain deportees.
AI also urged the government to ensure that its systems of detention ensure that among other things that a detainee is entitled to challenge the lawfulness of his/her detention; is notified of the reason(s) for his/her detention and informed of his/her rights in a language they understand; is given without delay access to and assistance from an attorney; given the right to confidential communication with his/her attorney; must have the right to be examined by a doctors and when necessary receive medical treatment, and the right to be brought before a judicial authority to determine the necessity for and lawfulness of the detention.
It urges too that detainees must enjoy an enforceable and effective right to redress and reparation for unlawful detention.
During the debate on the bills, Attorney-General Doodnauth Singh SC had argued in Parliament that the amendments were necessary because of civil strife, and domestic terrorism. He challenged anyone “to say that what we have defined [in the Criminal Law Offences Amendment Act 2002] as a terrorist act ought not to be called a terrorist act.”
Singh asserted that the way terrorism is defined in the Criminal Law Offences (Amendment) Act “is almost identical to the definition which is in the greatest democracy of the world, the Union of India.”
However AI contends that the Prevention of Terrorism Ordinance of India gives the Police there “sweeping powers of arrest and detention and contained provisions undermining freedom of expression and association and the presumption of innocence.”
Terrorism definition
The AI brief expresses concern that the Criminal Law Offences (Amendment) Act 2002 contains “a broad definition of a “terrorist act” which undermines the principles of legal certainty and the presumption of innocence and risks facilitating politically motivated prosecutions and threats to freedom of expression and association.”
“The act radically extends the scope of the mandatory death penalty to crimes other than murder and increases the risk that this penalty will be imposed following unfair trials.”
The AI brief also expresses concern too that the Prevention of Crimes (Amendment) Act 2002 “contains a provision for particular categories of individuals to be subjected to executive orders for police supervision and other measures, on the grounds that they are deemed to constitute a threat to public order or public security.”
“As well as undermining respect for the principles of certainty and the presumption of innocence, Amnesty International is concerned that the provision risks facilitating arbitrary arrest, indefinite arbitrary detention, ill-treatment and torture as well as creating a “shadow” system of justice in Guyana for those deemed to constitute a risk to “public order and public safety”, devoid of the essential safeguards needed to prevent abuses.”
In its comments on the Criminal Law Offences (Amendment) Act, AI says the legislation gives a definition of a “terrorist act” which is “broad, complex and vague” and explains, “Its loose wording leaves it open to different interpretations”.
The brief says the imprecise definition violates the principle of legal certainty since it makes it difficult for people to know if their behaviour is lawful or not and to adjust their behaviour accordingly.
Also, AI contends that the “lack of legal certainty undermines the right of those in custody to be informed immediately of the reason for the deprivation of the liberty, to enable them to challenge the legality of their detention” as “it will be harder for the authorities to provide the detainees with specific reasons for their arrest”.
Another contention of AI is that because the law is vague there is the risk of politically-motivated persecutions. Also it argues that “the purpose qualifying an act or threat as terrorist for example is very wide and open to subjective interpretation: “intent to threaten the unity, integrity, security or sovereignty of Guyana to strike terror into any section of the people.”
AI also contends that the definition of terrorism in the act could make possible the criminalising or otherwise impose limitations on the peaceful expression of dissenting views or activities.
It says, “striking for example could feasibly be interpreted as terrorism, since it is an offence under the Act for an individual to “with intent to threaten the unity ... of Guyana ... do ... any act or by ... any means whatsoever, in such a manner as to cause, or likely to cause ... disruption of any supplies or services essential to the life of the community.”
AI also expresses the fear too that the legislation could be used against journalists and others investigating and reporting on the activities of individuals under suspicion of the state.
It points out that section 301(a)(2) threatens the rights of freedom of expression and association as it provides that “it is an offence for anyone to conspire, advocate, advise or incite or knowingly facilitate the commission of a terrorist act or any act preparatory to a terrorist act.”
Death penalty
AI is also concerned that the legislation provides for the mandatory imposition of the death penalty if death results from a “terrorist act” whether or not it was unintended or not reasonably foreseeable.
It points out too that section 309(a)(2) provides for a 15-year jail term or the death penalty for committing a terrorist act and that the penalty is same for persons convicted for “inciting, advising, aiding, abetting, or knowingly facilitating” the commission of a terrorist act.
It says that the two sections “represent a vast extension of (the) scope of the death penalty in Guyana” and that such an extension “runs counter to trends in international jurisprudence from around the world and violates Guyana’s obligations arising under the ICCPR International Convention on Civil and Political Rights) and from Guyana’s membership of the Organisation of American States.”
It cites the report of the UN Special Rapporteur on Extra-judicial, Arbitrary and Summary Executions, which says, “the scope of the death penalty should never be extended. There is international consensus on this and in states which have not yet abolished capital punishment, the death penalty should only be imposed for the most heinous crimes; that is to say, intentional crimes with lethal or very grave consequences.”
It says too that the Inter-American Commission on Human Rights recently held that the mandatory death penalty “violates the American Declaration of Human Rights” as it constitutes “cruel, inhuman or degrading punishment or treatment.”
With respect to the Prevention of Crimes (Amendment) Act, popularly referred to as the Deportee legislation, this “violates fundamental human rights and risks facilitating further human rights violations”.
It points out that the right to be charged with a recognisable criminal offence is fundamental and that detention without a charge is a practice deemed to be arbitrary under international law and contrary to Article 9 of the ICCPR and to the principle of security of the person as laid down in Article 3 of the Universal Declaration of Human Rights.
Amnesty says that the provisions of the deportee legislation are vague and that the Police or other authorities could interpret the law as “legitimising indefinite detention without charge or trial of those deemed to constitute a threat to national or public security. “This could give rise to the possibility that a person could be arrested and detained on grounds other than for a recognisable criminal offence.”
AI also contends that the Act does not provide for sufficient judicial control as the “law does not make it explicitly clear that a person detained under an order has the right to challenge the lawfulness of the detention at any moment before the court.” As a consequence AI says that it fears that section 3(A)(3) of the Act “will contribute to a situation where, in practice, it will be difficult for those detained to approach the High Court to determine the lawfulness of their detention.”
The AI brief asserts too that the two Acts “violate recognised human rights standards contained in treaties ratified by the Guyana such as the International Convention on Civil and Political Rights.
Among the obligations with which Guyana as a state party to the International Convention on Civil and Political Rights must abide are Articles 18 (freedom of thought, conscience and religion), 19 (right to hold opinions without interference) and 22 (right to freedom of association).
With respect to the contribution the laws will make to effective crime control which incorporates respect for human rights, AI fears that “far from solving the crime situation in Guyana ... the laws ... will in fact aggravate the situation further by increasing the likelihood that state agents can abuse their powers with impunity.”
It notes “in countries which have enacted similar legislation, human rights bodies have suggested that the solution to the problem of effectively securing convictions for “terrorists” or those committing violent offences under the criminal justice system are to be solved - not through the promulgation of new laws restricting human rights - but through the strengthening of the criminal justice system in line with human rights standards.”