The Guyana Human Rights Association (GHRA) yesterday described acting Chief Justice Ian Chang’s ruling that paper committals under the Sexual Offences Act (SOA) are unlawful as “flawed in several ways,” deeming it another blow to access to justice for victims of sexual offences.
The human rights body, in a press release, was making reference to Chang’s ruling, as reported in the media, to the effect that the SOA “is at odds with the Constitutional guarantees to a fair trial,” which it called misconceived and a serious setback to citizens accessing justice in Guyana.
According to the GHRA, the opinion is flawed “by failing to examine whether paper committals, as a stand-alone procedure, meet the test of ‘fairness’; in confusing an “Inquiry” with a ‘Trial’; by ignoring the many real defects of Preliminary Inquiries with respect to ‘fairness’, which led to their being abandoned.”
The release noted that Justice Chang’s opinion was a response to a request for clarification from the Chief Magistrate following a challenge by a defence lawyer on whether “(a) an accused can be lawfully committed to stand trial pursuant to the provision for paper committals under the Sexual Offences Act No. 7, 2010, without giving him an opportunity of being heard and (b) whether the provisions of the SOA No.7, 2010, which do not permit the accused to he heard are in breach of Articles 144(1), 144(2)(d) and 144(e) of the Constitution.”
The specific point prompting the request was Section 5 of the SOA, which states: “For the purposes of a paper committal only the evidence of the prosecution shall be allowed”.
Whether Justice Chang referred to Clauses 12 and 14 of the First Schedule of the SOA is unclear from the press reports, the GHRA observed.
These clauses, the human rights body said, set out the procedures whereby the attorney for the accused or the accused themselves may make a submission at the oral hearing stage of the paper committals to the effect “that there is insufficient evidence to put the accused on trial for the offence” 12(b)).
Section 14(l)(b) states: “Where the attorney-at-law of the accused, or one of the accused, as the case may be, has requested the court to consider a submission that there is insufficient evidence to put the accused on trial by jury for the offence charged, the Magistrate shall consider all evidence tendered and the submissions made under subparagraph 2 and shall then determine whether, in the magistrate’s opinion, there is sufficient evidence to commit the accused for trial or to discharge the accused if the magistrate is of the opinion that there is insufficient evidence.”
Sub-paragraph 2(d) in turn states: “After the evidence has been tendered the court shall hear any submission which the accused may wish to make as to whether there is insufficient evidence to put the accused on trial by jury for any indictable offence under this Act”. The issue would, therefore, appear to be whether these provisions for paper committals safeguard the right of the accused to a fair inquiry, the GHRA argued.
It also posited that “the issue is not whether Preliminary Inquiries are preferable, or do it better than paper committals.”
“However, Justice Chang chose to rely on a 1978 case in which it is argued that Preliminary Inquires (PIs) are ‘part and parcel’ of a high court trial and, therefore, all the standards applicable to a fair trial are applicable to Preliminary Inquiries.”
According to the GHRA, “It cannot be right that the defendant’s right to a fair trial includes a specific right to a particular kind of preliminary procedure to judge whether the case should go to trial and that that stage should include basically the same rights to test evidence as the hearing itself.”
The substantive issue requested of the Chief Justice was whether these Clauses meet a sufficient standard of fitness for an Inquiry, “not for a trial” and moreover, “Article 144 (1) of the Constitution deals with the right to a fair trial, not two (or more) fair trials, one in the Magistrates’ Court and one in the High Court,” it added.
Irrelevant comparison
The GHRA said further that the opinion that PIs are ‘part and parcel’ of a High Court trial is irrelevant. “Preliminary Inquiries are no longer in existence and to compare paper committals to an idealized version of them (rather than the sordid, obsolete reality which led to their being replaced) is like comparing motor vehicles to horse drawn carriages and concluding that they should be suspended because they are noisier.
In other words the comparison put forward by Justice Chang was irrelevant by ignoring all of the shortcomings of what PIs had become and partial, in that what they had become was significantly less fair than the alleged shortcomings of paper committals.”
The GHRA asserted also that the hardships suffered by victims, especially women and girls, make this point particularly relevant with respect to sexual offences. “So the only purpose the 1978 authority could serve is for the court to go back to first principles, not to follow that case.”
And it is precisely because PIs were considered “part and parcel” of the trial that caused a lot of the trouble which led to their being abandoned and replaced by paper committals, the GHRA declared.
“PIs were a major obstacle to prosecuting sexual offences in Guyana and led to numerous breaches of victims’ rights, to which the opinion of Justice Chang makes no reference,” the human rights body noted.
Significantly, Justice Chang does not refer to any modern challenge on the grounds of fairness to paper committals from other jurisdictions where they are utilized extensively, the GHRA added.
Moreover, the GHRA said that “It is somewhat bizarre, that among the litany of violations against the right to a fair trial associated with PIs in Guyana generated by bribery, intimidation, corruption, incompetence and political interference, the paper committals procedure – the one major initiative to modernize the procedure and remedy abuses – should be brought to a halt.”
Lucrative source
The GHRA pointed out that “PIs – an oral procedure which predates the print era, not to mention the digital age – survived for so long because they are a lucrative source of income for many defence lawyers whose normal investment of time rarely surpassed turning up in the magistrates’ court to request an adjournment.”
PIs became mini-trials of attrition, simply wearing down the resolve of the victim until the case was abandoned and their possible resurrection is indefensible in a modem Judiciary, it maintained.
With all serious offences, the GHRA said further, the aim of the courts is surely to provide one fair, efficient trial within a reasonable period of time that respects the rights of all parties.
“Paper committals are a huge improvement in achieving this goal and PIs a huge obstacle (and) for this reason the former have been embraced and the latter abandoned in all self-respecting jurisdictions,” it stated.
This decision follows closely on the heels of questions raised recently by UN Expert Committee Members during presentation of the Guyana Government’s report on the Convention on the Elimination of Discrimination Against Women (CEDAW), the GHRA noted. It recalled also that the Committee of Experts had expressed concern, among other things, about women’s limited access to justice and slow implementation of the Convention and judicial reforms.
