The magistrate’s remarks amused me

Feb 09, 2018 Features / Columnists, Freddie Kissoon

As a human rights activist, I keep my sanity by laughing at my country which I find to have taken the form of a permanent circus. When I want to stop my Freudian id from overrunning the ego and superego, I look at Guyana and laugh at it.
Magistrate Ann McLennan made some remarks at the opening of a new Magisterial District Court Office last week in which she promised the people of Rupununi “fair and unbiased adjudication” of cases. She went on to say that access to justice is one of the major pillars on which a society stands. When I read those words in the state media, I was laughing all the way to the kitchen to make my coffee.
Here is a lengthy extract about that magistrate’s decision on a TIP case captioned, “Gov’t slams weak court decision in TIP case” in the Guyana Chronicle of September 8, 2016; “The Ministerial Task Force on Trafficking in People in a statement issued on Wednesday noted that both sentences were non-custodial, whereas the penalties in the legislation specify mandatory imprisonment. It was noted by the Legal Issues Sub-Committee of the Task Force that Section 3. (1) of the Combating Trafficking in Persons Act, No. 2 of 2005 states that “Whoever engages in or conspires to engage in, or attempts to engage in, or assists another person to engage in or organizes or directs other persons to engage in “trafficking in persons” shall – (i) on summary conviction (a) be sentenced to not less than three years nor more than five years imprisonment; (b) be subject to forfeiture of property under section 7; and (c) be ordered to pay full restitution to the trafficked person or persons under section 6. Therefore, the sentence in this case ought to have included a term of imprisonment in addition to the restitution ordered by the court. Additionally, Section 4 of the Combating Trafficking in Persons Act, No. 2 of 2005 states that “Any person who for the purpose of trafficking in persons, and acting or purporting to act as another person’s employer…knowingly procures, destroys, conceals, removes, confiscates, or possesses any passport, immigration document, whether actual or purported, belonging to another person commits an offence and shall on summary conviction be fined one million dollars together with imprisonment for not more than five years.” Therefore, by interpretation, a conviction for ‘unlawfully withholding of identification paper’ must include both a fine and imprisonment.”
That was in September 2016. I did my research and found out that Magistrate McLennan was not placed before the Judicial Service Commission for an explanation. If a law stipulates imprisonment upon conviction in specific cases, then surely, the presiding judge has no room for maneuvering if the law does not grant that space. I quoted from the statement of the Task Force to avoid accusation that Kissoon doesn’t know the law. In that statement, nowhere was it stated that the magistrate had the power to vary the sentence. The Task Force quoted the relevant sections of the law.
Against the background of this case, I wonder why so many people are jailed for small amounts of ganja. There have been several reports in the newspapers in which the accused pleaded guilty but the magistrate advised them to think about what they are doing, because a conviction carries a jail term.
As we are on the topic of ganja, readers should note that Antigua last week changed the law to allow possession of small amounts. Jamaica still leads the Caricom area in that possession of 46 grams is legal.
As we are on the topic of the courts, let me report on an incident outside Budget Supermarket last Saturday. I came out of my car and passed this driver who was still in her vehicle. She called me over and said she would like to show her respect for a particular column I did on the strange things that happen in the judicial system in this country.
She explained that in a case where her brother died, vital documents were missing when the trial was on and the accused was freed. And she knows there was a conspiracy. I told her I will take her to the Minister of Public Security and maybe an investigation could be launched. She said that given the job she holds, she knows the Minister and many of the senior people in power. She explained that as far as she knows, the state will appeal the decision.
She was unambiguous and pellucid that I not identify her. She said; “The Lord will intervene.” I walked away telling her I was not a believer.

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The magistrate’s remarks amused me

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