AMENDMENTS
TO CRIME LAWS, A SIGNIFICANT CRIME-FIGHTING MEASURE
BY PREM MISIR, Ph.D.
Criminal
Law (Offences Amendment) Bill 2002
Prevention
of Crimes (Amendment) Bill 2002
US
Criminal Deportees
Caricom's
fight aganist terrorism
The Government of Guyana has taken significant measures
to end the upsurge in crime. On June 7 this year, the President
enumerated a menu of security measures to enhance the capacity
and welfare of the Guyana Police Force. More recently, Government
tabled four crime-fighting Amendment Bills which were passed
in the National Assembly on September 26, 2002. These are:
1. The Criminal Law (Offences) (Amendment) Bill 2002 that
is expected to prevent acts of violence and destruction
of property.
2. The Prevention of Crimes (Amendment) Bill 2002 that is
expected to have Guyanese deportees monitored by the Police.
3. The Racial Hostility (Amendment) Bill 2002 that increases
the punishment for offences effected under the principal
law.
4. The Evidence (Amendment) Bill 2002 provides for the admissibility
of documents generated by the computer as well as other
documents inclusive of disc, tape, sound track, or other
mechanisms. This Bill is quite appropriate at this time,
as the evidentiary scope within the criminal justice system
needs to keep pace with technological advances in the production
of electronic documents.
One newspaper refers to the Government’s
expeditious passage of these four anti-crime bills which
contain problems and could be subject to constitutional
challenge in the future. Constitutional challenges to laws
are not an aberration, but quite a normal judicial process
in all democracies. The judiciary has responsibility for
interpreting the nation’s laws, and has the power
to declare any law unconstitutional. The U.S. Supreme Court
superbly executes this function.
Criminal
Law (Offences) (Amendment) Bill 2002
The Criminal Law (Offences) (Amendment) Bill 2002 had its
genesis since 1895. This Bill seeks to define a terrorist
act, and its basis is sourced from the universal models
of legislation on terrorism, inclusive of both the Commonwealth
and the Caribbean. The Bill does not seek to infringe any
fundamental rights of expression and assembly. In any case,
none of these rights is absolute, as these rights are not
intended to subjugate the interests of public safety, public
order, public morality, and defense.
Some concerns have been voiced on this
Bill. In fact, it is erroneously suggested that the Criminal
Law (Offences) Bill 2002 refers only to narcotic trafficking
and firearm possession, and should also have included money
laundering. This concern is baseless. The Bill refers to
these offences, among others, as follows: using bombs, dynamite
or other explosive or inflammable substances, lethal weapons
or poisons or noxious gases, or other chemicals or any other
of a hazardous nature, or by any other means whatsoever.
Further, Guyana already has a money laundering law to address
any offence of this nature. Why would you then want to include
it in the Criminal Law (Offences) (Amendment) Bill 2002
when the law already exists?
Here is another contention. This same newspaper
posits a very disturbing notion which smacks of minimum
understanding of what constitutes a crime. Here is the notion.
If the gunmen are arrested and could be charged for murder
under the existing laws, and such laws have not deterred
them from committing increasing acts of violence, why would
we think that the Criminal Law (Offences) Act would produce
this deterrence? Guyana, prior to the passing of this Bill
in the National Assembly, has had no law that carries the
death penalty for a terrorist act. The death penalty, under
current laws, exists for crimes other than those involving
terrorism. This new Act mandates the death penalty for a
convicted terrorist. Terrorism includes taking human lives
but is not solely confined to human killings; terrorism
incorporates other types of heinous crimes, as indicated
in the aforementioned ‘terrorist’ offences.
It may be useful to note here that an act or omission of
an act alone is insufficient to constitute a crime. The
law calls for ‘intent or mens rea’, in order
to establish culpability. The new Act does help with determining
intent through its definition of ‘terrorism’.
Another contention concerns sentencing. It is quite outlandish
for some to say that sentencing is the exclusive preserve
of the judiciary, and quite exclusive of the executive or
legislature. There are three branches of the political system
– executive, legislature, and the judiciary. These
branches symbolize the separation of powers among the legislature,
executive, and the judiciary. But in practice, each of these
powers is checked by another branch.
For example, in the U.S., the President
(executive) appoints judges (part of judiciary), among others.
These appointments are approved by the Senate (part of legislature).
The President has veto powers over laws passed by Congress
(part of legislature). The Supreme Court (part of judiciary)
can interpret a law to be unconstitutional. The Congress
can make amendments to the Constitution. These really are
checks and balances in action.
This application of a muddled separation
of powers is by design because the doctrine of separation
of powers ensures that each branch’s powers are limited
by another branch. Also, the idea of forcing each branch
to be accountable to the other assures that that no one
branch of the political system can have enough power to
dominate the other branches. So politically, the doctrine
of separation of powers guarantees that no one branch, be
it executive, legislature, or judiciary, can control the
other.
But, indeed, the judiciary has some control
over sentencing, but its powers are checked by the watchful
eyes of the executive and the legislature. A sentence refers
to a judge or jury’s decision based on statutory law,
determining the punishment for an offender after conviction.
In the final analysis, it is the law emanating from the
legislature that primarily drives a judge’s decision
and discretion in decision-making. Therefore, it’s
nonsense to talk about ‘sentencing’ being the
exclusive preserve of the judiciary. It should be noted,
too, that there is no discretion where death is statutorily
determined to be the punishment.
Prevention
of Crimes (Amendment) Bill 2002
The Minister, it is claimed, cannot exert judicial and legislative
powers constitutionally, but which functions, however, are
given by the Prevention of Crimes (Amendment) Bill 2002.
This is another area of concern raised. The claim made is
that the Minister may determine whether a person can be
detained at a police station or prison, in a manner in which
due process for the deportee may not be applied. The new
Act stipulates that the Minister can issue the order for
supervision only after the Commissioner of Police has applied
to the High Court for permission. If permission is granted,
then the Commissioner of Police can make such an application
to that Minister. The judge, however, has to be satisfied
about the appropriateness of making such an application
to the Minister, before granting permission to the Commissioner
of Police through the issuance of a certificate. If the
judge rejects the Commissioner of Police’s application,
then that’s the end of the matter, and at least, in
this case, the Minister cannot issue an order on this deportee
in question.
An important point to note is that the
current law determines that only Guyanese convicted of an
offence within Guyana becomes liable for police monitoring.
This has happened to a large number of people subjected
to weekly ‘Eve Leary’ supervisions during the
aggressive and over-zealous implementation of the infamous
National Security Act during the PNC’s ruling years.
Additionally, the Prevention of Crimes (Amendment) Bill
2002 is based on Jamaican jurisprudence on deportees.
US
Criminal Deportees
Let’s examine the source of the US criminal deportation.
The Illegal Immigration Reform and Immigrant Responsibility
Act (IIRAIRA) of the US signed into law by President Clinton
on September 30, 1996, introduced sweeping changes in immigration
policy since the 1920s.
Criminal deportees from the US to Guyana
and the Caribbean have been convicted of aggravated felonies.
Crimes of violence are murder, physical assaults, drug trafficking
crime, and illicit trafficking in firearms or destructive
devices. Other crimes of violence considered aggravated
felonies are felony drunk driving; aggravated driving under
the influence; arson; involuntary manslaughter; criminal
contempt; criminally negligent child abuse; sexual abuse
of a minor; and statutory rape. These are all deportable
offences for both legal permanent residents (Green Card
Holders) and illegal immigrants.
Criminal deportees from North America have
been a factor among other factors in the new crime wave
in Guyana and the Caribbean. Indeed, criminal deportees
have been intensively socialized in the criminal fields
in the US. These deportees are in full possession of their
US criminal tool kit. Indeed, their criminal training in
a developed society gives them an advantage in the pursuit
of criminal activities over Guyana’s local petty home-grown
criminals.
Griffith (2000) pointed out that criminal
deportees have produced an upward change in crime trends
in Guyana. In fact, Nolan and Rosales (1998) noted that
a large number of deportees are hard-core criminals, and
their return to their home countries has contributed to
gang violence and to increased drug-trafficking in the region.
Taylor and Aleinikoff (1998) indicated that foreign diplomats
report that the return of deportees is the main reason for
penetratingly rising crime rates in the Caribbean and Central
America. An official at the daily Gleaner said that “the
island suffered one of its bloodiest years in 1996 in part
because of the return of dangerous criminals. The 925 people
murdered topped the 889 people killed in 1980 during the
island’s worst election year” (1999).
Deportees with such criminal backgrounds
who are posted back to Guyana and the Caribbean invariably
will continue with the criminal lifestyles learnt in the
US. The deportees’ criminal activities in Guyana have
not comprehensively been presented to the public. Clearly,
a network of relationships grounded in criminal behavior
exists among some deportees. Network rather than individually-produced
crimes tend to have greater sustainability and productivity,
and therefore, the network factor must be injected in any
crime-fighting tactics and strategy.
CARICOM’S
FIGHT AGAINST TERRORISM
Recognizing the crime wave in the Caribbean, CARICOM Heads
at the Nassau Declaration on International Terrorism in
October 2001, had this to say, “…To this end,
the Conference has mandated a review of all, relevant and
regional and international conventions in order to ensure
the widest possible adherence to them by CARICOM governments.
We will also accord the highest priority to the enhancement
of existing national legislation relating to security in
all its dimensions and to the enactment of new laws, as
required.”
Clearly, then, Guyana’s jurisprudence
has to be realigned to prevent and eliminate the new criminality,
a criminality steeped in awesome technological advances
criminal networks.
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