Following a marathon debate and despite strenuous objections from the main opposition benches, government late Tuesday night used its majority in the National Assembly to pass amendments which will now see juveniles being tried together with adults for indictable offences they are accused of committing together, which cannot be disposed of by summary trial.
Government’s position in the Bill’s explanatory memorandum, has been that the amendment will save judicial time and money; but notes importantly that it also allows the Court to employ all necessary measures it considers appropriate, to ensure the best interest of the juvenile remains paramount.
The common thread running through the presentations of all the opposition members who debated the Bill, was that the special safeguards provided to juveniles by the Juvenile Justice Act which provides for them being tried separately from adults, was being eroded.
Attorney General and Minister of Legal Affairs Anil Nandlall SC, however, told the House in his impassioned address that the amendment was to a single section of the principal Act, even as he stressed that all the other provisions and protections afforded the juvenile remained intact.
Against that background he said that the concerns expressed by opposition members whom he accused of not having properly read the Act itself; represented their misinterpretation of the amendments which they believe would “brutalize, mutilate … this piece of legislation.”
First in the Opposition line-up, APNU+AFC member Khemraj Ramjattan immediately signalled his non-support for the amendment, saying that it represents a “fundamental and radical departure” from the regime established to deal with juveniles in the criminal justice system.
On this point he said that it was only passed in 2018, when his Party was in power —following some 14 years—of hard work which began in 2004 by the then PPP/C government when all parliamentarians on both sides of the House agreed that a brand new legal regime to govern juveniles was badly needed.
He said that at that time, “we all supported the Juvenile Justice Act” as a comprehensive document “to significantly tackle the issues related to juvenile justice,” referencing that the PPP/C had retained the services of an expert, Dr. Bruce Abramson, who articulated the need for modern philosophy governing juvenile justice.
“It is not the same like an adult. It is wholly different,” Ramjattan said in his impassioned address on Tuesday night as he referenced what he described as wide-ranging consultations by the Chambers of the Attorney General and the Bar Council of the Guyana Bar Association as Guyana had signed on to UN rights conventions.
Ramjattan said that to now step away from the “fundamental core principle” of juveniles being tried separately from adults, is to renege on the international conventions Guyana would have ratified.
“Today, I am very disappointed. I am so disappointed because it would appear that all those foundational principles” previously agreed to, for ensuring a separate justice system for juveniles from that of adults are now being “completely eroded” by the government, Ramjattan said.
The MP said that he was also concerned that Minister of Home Affairs Robeson Benn, by whom the Bill had been tabled submitted no “rational report” substantiating the necessity for the amendments sought; stressing that cost and judicial time could not justify such significant alterations to the architecture for juvenile justice.
He accused the PPP/C government of not supporting justice if it costs too much money or judicial time. He said, however, that justice is far superior than quantifying in terms of money and time; while vehemently arguing that the vulnerability of the juvenile is what led to the creation of the section providing for separate trials.
To so ignore would “dilute the impact” of the specially-created regime afforded to juveniles, Ramjattan said.
All the government MPs in support of each other for passage of the Bill, however, maintained that the amendments were necessary to save judicial time.
Minister of Public Service, Sonia Parag described the previous need for conducting two separate trials as leading to “delay” and to a path which “frustrates and hinders justice.”
Minister of Culture, Youth and Sport, Charles Ramson Jr, dismissed the concerns raised by the main opposition as misguided, stating that not only does the narrow amendment not interfere with all the other provisions and protections afforded under the principal Act, but applies only for a few indictable offences.
Those offences he said, were murder, manslaughter, rape and treason; while stating as Nandlall did, that the juveniles will continue facing courts separately for all other offences which can be disposed of at summary trial.
For his part, opposition MP Jermaine Figueira, who like colleagues on his side of the House, objected to the amendments offered for consideration to the AG and Benn, the suggestion of an amendment instead which would cater for special evidentiary rules allowing cross-examination of witnesses’ statements which he said can be used for both adult and juvenile court proceedings so as to avoid witnesses testifying twice, thereby saving time.
Nandlall had stressed, however, that the amendment was a simple one which seeks to merge two hearings into one, with the built-in safety mechanism that the Court ensures the protection of the juvenile.
He also pointed out that use of the word “may” in the amendment indicated that the Court still has a discretionary power not to conduct a joint trial, if it finds that a juvenile may be prejudiced therefrom.
Following the debate, the Bill was passed.
Last month Benn tabled the Bill with the amendment of two new subsections, following subsection (4) of Section 36 of the principal Act which provides for a juvenile’s appearance before the court.
The new subsection (5) states that, “Notwithstanding Section 3(b) (i) [of the principal Act], where a juvenile commits or is alleged to have committed an indictable offence with an adult and the offence cannot be disposed of summarily, the juvenile may be charged jointly with the adult.”
Section 3(b) (i) of the Act currently provides, “The juvenile justice system shall – be separate from that for adults.”
The new subsection (6) meanwhile states, “Where a juvenile is charged jointly with an adult pursuant to subsection (5), the court may conduct one hearing into the charge and may employ such measures, as the court considers appropriate, for securing the rights of the juvenile under this Act.”
Section 2 of the principal Act defines a juvenile as “a person who is or, in the absence of evidence to the contrary, appears to be fourteen years old or older, but less than eighteen years old and, if the context requires, includes any person who is charged under this Act with having committed an offence while the person was a juvenile or who is found guilty of an offence under this Act.”
Citing Section 3(b) (i) of the principal Act which prohibits juveniles from appearing before the court with an adult, the explanatory memorandum of the Bill notes that the amendment will create an exception.
It further noted that the amendment will remedy the issue of two separate charges being instituted where the juvenile commits an indictable offence, which cannot be disposed of summarily with an adult.
The criminal justice system the memorandum states, often results in witnesses testifying twice, thus leading to a significant increase in judicial time and expense.
With the amendment, however, the explanatory memorandum stated that the juvenile and adult may then be charged jointly and one trial conducted; and will also allow the magistrate or judge to employ such measures as the court deems appropriate to ensure that the best interest of the juvenile remains paramount and the rights of the juvenile which are enshrined in the principal Act, are not curtailed.
