Prisoners Constitutional redress motion--
Benschop’s lawyer granted right to intervene in proceedings
By George Barclay
November 11, 2003
JUSTICE Jainarayan Singh, who is hearing the Constitutional Motion brought by eight prisoners of the Georgetown jail to prevent the Director for Public Prosecutions (DPP) from listing treason accused Mark Benschop’s case and the cases of other recently committed prisoners for hearing before theirs, yesterday granted Benschop’s lawyer Mr. B.Gibson the right to intervene in the proceedings.
Following the ex parte hearing of the motion, brought by lawyers Ms Priya Manickchand and Mr.Glenn Hanoman on behalf of prisoners Seetal Sookdeo and seven others, Judge Jainarayan Singh had granted a Nisi Order to prohibit the DPP from executing the hearing list as planned, and to replace same with a list to include cases on a first-committed-for-trial basis.
The prisoners are contending that the existing DPP list, which showed Benschop as heading the list for hearing at the present sessions, was a contravention of the applicants’ fundamental rights and freedoms guaranteed by Articles 40, 139,141, 144 and 149 of the Constitution of Guyana.
Defendants named by the applicants were the Director of Public Prosecutions, the Registrar of the Supreme Court and the Attorney of General, all of whom agreed to file affidavits in answer.
Yesterday. Ms Manickchand alerted the Court that she had only received affidavits in answer in respect to two of the prisoners, and wondered whether this would mean that the other affidavits in respect to the other five prisoners would form part of another proceeding.
Mr. Gibson, who by the Judge’s ruling yesterday, will now have to file an affidavit in answer in relation to the substantive motion, suggested that all the matters should be held together, and declared that he was speaking for the absent lawyers.
Mr. Gibson had filed an affidavit sworn to by Mark Benschop, who had sought to intervene in the matter on the ground that he was an interested person ands that the Nisi Order granted by the Judge would affect him.
Gibson, on the advice of the Judge, filed a summons seeking the right to intervene on behalf of his client.
But after the summons was filed, Ms Manickchand, one of the lawyers for the prisoners, opposed the intervention on the grounds that Benschop did not have the right to intervene. She subsequently filed a summons objecting to the intervention, which summons was heard yesterday.
Justice Singh ruled that Benschop was an interested person and that he had a right to intervene through his lawyer.
Legal pundits have pointed out that since the application to intervene was not a Habeas Corpus motion, the applicant, Benschop, will not be at the hearing when it continues on November 14, at 1.30 p.m.
In his affidavit, Benschop had said, “I am one of the parties directly interested in the Order Nisi of the learned trial Judge although I am not named as one of the respondents in the Notice of Motion.
He added, “That I am charged with the offence of treason and have been incarcerated at the Georgetown Prison since July 15, 2002 when I first appeared before the Chief Magistrate (ag). I was committed on February 26, 2003 by Magistrate Sohan to stand trial for the said offence at the Demerara Assizes and continue to be incarcerated.
That I am advised by my Attorneys-at-law and verily believe that in terms of section 113 of the Criminal Law Offences Act Cap 10:01 my depositions are ready and completed and the first-named respondent has presented my indictment for hearing at the October sessions of the Demerara Assizes and the second-named respondent caused same to be Gazetted in the ‘Official Gazette’ of Saturday September 27, 2003.
That the applicant has no cause nor reason to interfere with my right to a fair trial within a reasonable time.”
The affidavit is claiming that the Order Nisi herein is unlawful having regard to the Constitution more particularly Article 187 where the Office of Director of Public Prosecutions has been created as an independent public authority with power to institute, undertake and carry on criminal proceedings independently.
Benschop also said that he has authorised Mr. Benjamin Gibson and/or Shaun Allicock and/or Ms. Emily Dodson, Attorneys-at-law to act as his attorneys-at-law in the matter.
The Nisi Order was granted to lawyers Priya Manickchand and Mr. Glen Hanoman, who are representing the applicant’s prisoners - Kenneth Richardson, Seetal Sookdeo, and six others.
They are seeking constitutional redress under Article 153 of the Constitution for contravention of their fundamental rights and freedoms guaranteed by Articles, 40, 139, 141, 144 and 149 of the Constitution of Guyana. They are saying, too, that their rights are being contravened by listing the name of treason accused Mark Benschop as Number One on the hearing list along with other prisoners, who had recently been committed to stand trial in preference to persons who had been awaiting trial for years.
The substantive hearing of the motion is fixed for November 14.