Guyana needs a Prosecutorial Commission

Dec 18, 2018 Letters

DEAR EDITOR,

I wish to share these thoughts for a more developed legal system in Guyana, especially coming on the heels of the implementation of ‘The Code for Prosecutors,’ aimed at improving consistency in decision-making among prosecutors, purportedly to guide them on general principles to be applied when making decisions about prosecutions.
In Guyana, like in many other judicial systems globally, rogue prosecutors face little, if any, repercussions, even when there is egregious conduct on their part. They can compromise justice with impunity – and inefficiency.
Prosecutors are ministers of justice, and a vital part of the legal system. Any criminal justice system must exonerate the innocent fairly, while convicting the guilty. When any prosecutor consciously disregards that fundamental duty, communities suffer and lose faith in the system.
Guyanese must have a forum to be heard while seeking justice, such as a prosecutorial oversight body to hear complaints. This will serve to give Guyanese comfort that there is a system of checks and balances in the criminal justice system, and that they stand as equals before the law. Such complaints must be exposed to eradicate abuses of power, and will improve our justice system.
This commission will serve as a disciplinary entity designated to review complaints of prosecutorial misconduct, enforce the obligation of prosecutors to observe acceptable standards of conduct, and establish reasonable accountability for the conduct of prosecutors during the performance of their functions, powers and duties.
The proposed Commission should consist of a broad range of diverse personnel, including doctors, priests, social workers, humanitarian workers, former judges and magistrates, lawyers, and others, appointed by the leaders of the ruling and opposition parties, and other legislative and judicial leaders. It will receive and investigate complaints of misconduct by prosecutors, and its findings from such investigations will be made available to the public.
The Commission should also have the power to remove prosecutors from office, and from further prosecutions.
Prosecutors must understand that their duty, primarily, is to ensure justice is served -not to get convictions. They must only charge if the extant laws have been breached. It is not the function of a prosecutor to legislate, nor create new law. Only Parliament can do that.
I know from experience that a rogue or overzealous prosecutor, anxious to ride the publicity and statistics to higher office, will indict if he or she can make the news, even if the laws were not breached. The jury palpably rejected their quixotic and demented theory of the law, and their waste of taxpayer resources. These scoundrels are a blight on the system.
In fact, many jurists opine that prosecutors should only proceed with charges if they are convinced that they will secure a conviction beyond a reasonable doubt, although they may have sufficient evidence to support a finding that it is more probable than not that a crime has been committed. That is because civil rights and liberties are sacrosanct, and from a public interest perspective, cases break down at trial.

Moreover, they should think long and hard before bringing charges where the evidence is uncorroborated, even if not legally required. Of course, cases consisting solely of a confession by the accused/suspect should be rejected and sent back unapologetically, for a more thorough investigation by police ranks.
As a former Senior State Counsel and Police Legal Advisor at the DPP’s office, I always, unapologetically, sent back weak, uncorroborated cases to be re-investigated.
Politics should never influence a prosecutor’s judgment, or his discretion. In my tenure as a prosecutor, our office always held educational seminars for prosecutors drawn from law enforcement personnel – Police, Customs, Immigration, for example, to enhance their development in the only Court they were allowed to appear – the Magistrate’s Court. Another facet worth implementing (if that has changed), is having only a seasoned State Counsel represent the State in important proceedings.
What about incarceration? Should Guyana implement other less punitive types and more rehabilitative forms of punishment? Surely that will decrease prison overcrowding, and follow tried and tested reforms that obtain in more developed countries? This surely should be considered also.

Albert Baldeo
Fmr Senior State Counsel/Police Legal Advisor (DPP’s Chambers)

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