AG defends Commission of Inquiry into ill-fated MV Barima tragedy

At­tor­ney Gen­er­al Anil Nand­lall is de­fend­ing the de­ci­sion to es­tab­lish a Com­mis­sion of In­quiry in­to the MV Bari­ma tragedy that left 72 peo­ple dead and more than 30 oth­ers miss­ing and pre­sumed dead when the ves­sel cap­sized on Ju­ly 18.

Speak­ing on his week­ly “Is­sues in the News” pro­gramme on Tues­day night, Nand­lall was al­so crit­i­cal of op­po­si­tion politi­cians in­clud­ing the leader of the Peo­ple’s Na­tion­al Con­gress (PNC), Aubrey Nor­ton, whom were op­po­si­tion the ef­forts at get­ting to the bot­tom of the tragedy in keep­ing with “ their tra­di­tion­al and his­tor­i­cal ap­proach on these mat­ters.

“You check at any time in Guyana’s his­to­ry, you will al­ways see that they are nev­er on the side of the law en­force­ment agen­cies…they are nev­er on the side of vic­tims of crime. They are al­ways on the the oth­er side,” he said,, re­call­ing the po­si­tion of the op­po­si­tion fol­low­ing the prison out­break in 2001 “when they em­braced those per­sons who were go­ing around slaugh­ter­ing peo­ple, rob­bing Guyanese, killing peo­ple”.

Nand­lall told view­ers that hav­ing cho­sen a side, it would be “a con­flict of in­ter­est for them to pre­tend or pur­port to act for the per­sons who have per­ished or were af­fect­ed by this tragedy.

“It would be a le­gal con­flict of in­ter­est for them to do so. They have cho­sen their side.”

On Tues­day, the Guyana gov­ern­ment said that the search and re­cov­ery op­er­a­tions have end­ed but that the Mar­itime Res­cue Co­or­di­na­tion Cen­tre re­mains op­er­a­tional.

The MV Bari­ma sank as it made its was from George­town to Port Kai­tu­ma and on Mon­day, a mag­is­trate ad­journed to Sep­tem­ber 7, the court case in which three peo­ple, in­clud­ing the cap­tain of the ill-fat­ed ves­sel, have been charged with mur­der af­ter the 87-year-old ves­sel sank.

Kevin Price, alias ‘KP’, the 40-year-old cap­tain of the ves­sel, his 42 year-old chief mate, Ron­dell Dwayne Roberts and De­lon Grander­son, a 33-year-old goods su­per­in­ten­dent ap­peared by zoom be­fore Mag­is­trate Ravin­dra Mo­hab­ir at the Char­i­ty Mag­is­trate’s Court.

De­fence lawyers and oth­er le­gal com­men­ta­tors as well as the op­po­si­tion have crit­i­cised the de­ci­sion to file the mur­der charges against the three men, con­tend­ing that the search is still con­tin­u­ing and that the Com­mis­sion of In­quiry ap­point­ed by the gov­ern­ment to ex­am­ine the cir­cum­stances that led to the worst mar­itime dis­as­ter in Guyana’s his­to­ry has not start­ed its work.

But the po­lice have main­tained that the mur­der charges were in­sti­tut­ed fol­low­ing le­gal ad­vice from the Di­rec­tor of Pub­lic Pros­e­cu­tions.

Di­rec­tor of Pub­lic Pros­e­cu­tions Shal­i­mar Hack said she ad­vised that the trio be charged based on the ev­i­dence pre­sent­ed, the rel­e­vant prin­ci­ples of law in­volved, case law au­thor­i­ties from the Unit­ed King­dom, Com­mon­wealth ju­ris­dic­tions, the Eu­ro­pean Court of Hu­man Rights, and pub­lic pol­i­cy con­sid­er­a­tions.

Nand­lall, who is al­so the Min­is­ter of Le­gal Af­fairs, said that the DPP is an in­de­pen­dent con­sti­tu­tion­al of­fice that is not the sub­ject of any di­rec­tion or con­trol from any oth­er agency and hav­ing re­ceived a file of an in­ves­ti­ga­tion done by the Guyana Po­lice Force, rec­om­mend­ed the charges.

“That’s the state…this is the po­lice con­duct­ing in­ves­ti­ga­tions, a hun­dred per­sons dead. You don’t think the po­lice will con­duct in­ves­ti­ga­tions? And you don’t think the state ap­pa­ra­tus will be ac­ti­vat­ed?

“Per­sons are crit­i­cis­ing the charge and I hear all man­ner, all man­ner of le­gal ar­gu­ments be­ing ad­vanced,” Nand­lall said, adding that while it is not his place to an­swer those le­gal ar­gu­ments, it is al­so not “my place to de­fend the DPP.

“But any per­son who has a rea­son­able un­der­stand­ing of law, know that yes, in­ten­tion is re­quired for mur­der, but you can in­fer in­ten­tion from cir­cum­stances. It de­pends up­on the lev­el of reck­less­ness and neg­li­gence.”

He said that for cen­turies, per­sons have been charged with mur­der with­out the ac­tu­al in­ten­tion to kill.

“But hav­ing re­gard­ed the lev­el of reck­less­ness, one can in­fer, if one can, there’s a fore­see­abil­i­ty test. If you can fore­see or rea­son­ably fore­see that be­cause of your ac­tions, death will re­sult, you don’t need ac­tu­al in­ten­tion,” Nand­lall said, not­ing that he doesn’t wish to get in­to de­bates with peo­ple on that mat­ter.

“We live in a democ­ra­cy. The state ap­pa­ra­tus is at work. The Con­sti­tu­tion and the le­gal sys­tem of the coun­try pro­vides that … any­one who is dis­sat­is­fied with a de­ci­sion of a con­sti­tu­tion­al agency, a statu­to­ry au­thor­i­ty, or a pub­lic of­fi­cer, is free to chal­lenge that in the court.”.

Nand­lall is al­so urg­ing peo­ple to read the terms of ref­er­ence for the Com­mis­sion of In­quiry pub­lished in the of­fi­cial Gazette and span­ning a to­tal of 10 pages, not­ing that at least 90 per cent of those mak­ing state­ments on the is­sue have not done so.

He said that the Com­mis­sion of In­quiry is not es­tab­lished to de­ter­mine crim­i­nal and civ­il li­a­bil­i­ties and that it serves as “an in­ves­tiga­tive en­quiry.

“It makes find­ings and then it puts those find­ings in a re­port and then it makes rec­om­men­da­tions, none of which are bind­ing in law. And the terms of ref­er­ence of the Com­mis­sion of In­quiry ex­plain all of that.

“It will make rec­om­men­da­tions. It will make find­ings based on ev­i­dence and then make rec­om­men­da­tions based up­on those find­ings,” he said, adding that the Com­mis­sion “shall de­ter­mine whether the ev­i­dence dis­clos­es pos­si­ble crim­i­nal con­duct, in­clud­ing pos­si­ble crim­i­nal neg­li­gence, mis­con­duct in pub­lic of­fice, fal­si­fi­ca­tion or con­ceal­ment of cer­tifi­cates, or main­te­nance of records, fraud, cor­rup­tion, ob­struc­tion of jus­tice, de­struc­tion or con­ceal­ment of ev­i­dence, or any oth­er of­fence un­der the Pro­ce­dures of Guyana”.

He re­it­er­at­ed that any find­ing or rec­om­men­da­tion un­der this part shall not con­sti­tute a de­ter­mi­na­tion of crim­i­nal guilt or a fi­nal ad­ju­di­ca­tion of civ­il lib­er­ty, which re­mains a mat­ter for the courts and oth­er com­pe­tent au­thor­i­ties.

“So this can’t sub­sti­tute for the po­lice. This will make for the rec­om­men­da­tions for more per­sons to be in­ves­ti­gat­ed. And they will hand over the rec­om­men­da­tions and their ev­i­dence, and the po­lice can take that in­to ac­count. The DPP can take it in­to ac­count. The At­tor­ney Gen­er­al can take it in­to ac­count.

“But the law­ful­ly con­sti­tut­ed agen­cies ap­point­ed by the Con­sti­tu­tion and ap­point­ed by the dif­fer­ent pieces of leg­is­la­tion will have to dis­charge their re­spec­tive law­ful man­date,” Nand­lall said, adding that the Com­mis­sion of In­quiry “can’t usurp that”.

He said that re­gard­ing the per­sons who have been charged, “that is not a con­clu­sion, and in­ves­ti­ga­tions will con­tin­ue”.

GEORGE­TOWN, Guyana, Aug 5, CMC