Sexual Offences
4820 03 Jan, 2013
Attorney General and Minister of Legal Affairs [Mr. Nandlall]: Let me take this opportunity to wish all my colleagues in the House a most prosperous 2013.
The amendment, which is before the House, is one that is very simple. Members will recall that in 2010, we passed what I described then to be a most landmark piece of legislation in that it, almost in a revolutionary way, changed our criminal law as it relates to sexual offences, both substantively and procedurally.
Mdm. Deputy Speaker, if I may be permitted to go back a bit, that Bill had quite an incubation period. It lasted the tenure of three Ministers of Human Services, the Hon. Indranie Chandarpal, the Hon. Bibi Shadick and finally the Hon. Priya Manickchand. There was wide consultation on this Bill. There was expert advice from personnel all the way from the United Kingdom, Canada and Trinidad. I recall the input and intervention of Justice Lucky of the Trinidad High Court. There was input from our own Hon. Madam Justice Roxanne George. There was input from the Guyana Women Lawyer’s Association and various bodies. Then when the Bill arrived at its final destination in this House, it was transmitted to the Special Select Committee where we cogitated upon it for quite a long period of time. I distinctly remember my learned friend Mr. Basil Williams sitting opposite me in that Committee and, of course, he would have contributed significantly to the reforms which were made to the Bill then. We then brought the Bill to the National Assembly and it was unanimously passed.
We said then that because of the fundamental changes which the Bill sought to bring to the arena of our criminal law in relation to sexual offences we would not have ruled out the possibility that we may have to come back here to amend it, and so said so done. Our High Court ruled on 10th August, 2012 that certain sections of the Act were unconstitutional. We could have appealed the decision of the Hon. Chief Justice – that is the judge who made the ruling – because there is a body of case law which tends to support the view that the Hon. Chief Justice may not be correct. We had to make a choice of appealing or amending. We made the choice of amending the Act simply because appealing it would have kept it in the system for an unpredictable period of time. Currently the situation on the ground is that since the ruling of the Hon. Chief Justice, no charge in relation to the offences created by this Act - the offences span the length and breadth of sexual offences as we know them in this country – could have been instituted since August, 2011. We have, somewhat, a very horrendous situation where we have had allegations of sexual misconduct committed but the law is not in a state to institute the appropriate charge because of the ruling of the Hon. Chief Justice. Faced with that conundrum, the administration decided that it is easier to come to the Parliament and rectify that which the Hon. Chief Justice ruled was unconstitutional.
A charge of rape was pending before the magistrate and the lawyer took an objection that the accused, under the legislation, did not have a right to serve statements at the preliminary inquiry and that the prosecution had such a right and argued that the Act was unconstitutional in that respect. The learned magistrate referred the matter to the Chief Justice for his guidance and that resulted and culminated in a written ruling of the Chief Justice spanning eleven pages. In his very erudite and expansive judgement, the learned Chief Justice examined article 144 (8) of the Constitution, which confers upon a citizen the right to a fair hearing within reasonable time, and supported his reasoning with very well respected authorities, including pronouncements from legal giants of the calibre of Chancellor Joseph Oscar Fitzclarence (JOF) Haynes, and so on. The Hon. Chief Justice reasoned that the preliminary inquiry, though it is not a trial, is condition precedent to the trial and a very integral part and process of the hearing to which the accused is entitled. Therefore, though it is not a trial it is part and parcel of a process that will result in the trial, all facilities, which the accused is entitled to at the trial, should be accorded to him at the preliminary inquiry, a fortiori, when such facilities are extended to the prosecution.
That was the reasoning of the learned Chief Justice and he ruled that the Sexual Offences Act, in so far as, it did not permit an accused person to lay over a statement at the preliminary inquiry, it infracted that accused person’s right to a fair hearing under the Constitution. Accordingly, the Chief Justice declared those sections of the Act to be violated of the Constitution of the Co-operative Republic of Guyana and, therefore, inoperable and inoperative. Therefore we had to come to this National Assembly with this amendment which simply seeks to confer that facility on the accused person which is enjoyed by the prosecution at the preliminary inquiry. In a nutshell, that is what this Bill seeks to do.
In addition, I must say that the ruling of the Hon. Chief Justice appeals to one’s sense of justice and fairness. Recall, at the end of the day, the scales of justice must be balanced in relation to both sides, not conferring any form of advantage in favour of one against the other. Therefore the Chief Justice’s reasoning is most attractive to one’s concept of fairness and what one considers to be just, in accordance with the rules of natural justice. Hence the reason the administration did not consider pursuing the matter by way of an appeal simply to prove a legal point when there would be dozens of cases not being able to be filed, denying justice in an innumerable number of cases. As I said, we do not have an idea how long the litigation can last in our court system.
The Bill seeks to do that, to confer on the accused person the right to serve statements. We took the opportunity to correct what we consider to be another deficiency of the Act, in that the Act allows a child who may wish to testify to sign. Perhaps we did not recognise that children beyond a particular age cannot or may not be able to sign and, therefore, the Bill allows for an identification mark of that child to be affixed to his or her statement.
That, in a summary, is what this amendment seeks to do. I do not think that it is in any manner objectionable or can be objectionable to the other side and, therefore, I humbly ask that we pass this without any objection. Thank you. [Applause]
Mr. Nandlall (replying): I wish to thank all of my friends on the other side and my colleagues on this side for their unequivocal support. I endorse the views of my learned friend Mr. Williams that we have to bring greatest dispatch to the rate at which our judiciary is functioning. We have to continue to explore various initiatives.
In relation to the lack of personnel, to which he made reference, I take this opportunity to inform the House that shortly a Bill will be coming to the House to increase the complement of judges to be appointed to the High Court. Right now it is a stipulated number beyond which we cannot lawfully go. I will bring an amendment that will expand the complement.
I thank Mr. Ramjattan for the magnanimity that he displayed in accepting responsibility for all of us for the mistake. It is inexplicable. It appears now so rudimentary, yet it escaped the scintillating brilliance of my learned friend Mr. Williams, and all of us.
I am very happy that the Bill, its value, has been recognised by all sides in the House and I ask that it be read a second time.
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