Former AG says gov’t hiring of special prosecutors unconstitutional

-warns politically-tainted selections compromise right to fair trial

Former Attorney General Anil Nandlall says that the Attorney General’s Chambers’ retention of six attorneys to prosecute a number of high profile cases is unconstitutional and he is warning that the right to a fair trial will be compromised by a politically-tainted process.

“First of all, you have the violation of a constitutional and legal principle taking place…where the AG [Attorney General] is attempting to deal with prosecutions….so you have a trespass in the domain of the separation of powers doctrine,” Nandlall told Sunday Stabroek.

In July last year, the government had announced that it was awaiting advice on the feasibility of setting up a Special Prosecutors’ Office to handle high-profile cases. Opposition Chief Whip Gail Teixeira had voiced concern about the move, saying that it will be yet “another attempt to witch-hunt political opponents.”

In January this year, the Director of Public Prosecutions (DPP) issued fiats to attorneys Michael Somersall, Hewley Griffith, Lawrence Harris, Patrice Henry, Compton Richardson, and Trenton Lake. Their hiring by government was in keeping with the establishment of a Special Prosecutors’ Office.

However, Nandlall stated that following the last budget presentation, he had questioned the allocation of $100 million to the Attorney General Chambers/ Ministry of Legal Affairs and recalled AG Basil Williams SC informing the National Assembly that it was for the hiring of special prosecutors to prosecute offences of corruption committed under the previous government.

Making it clear that he was dissatisfied with that answer, he stressed that the AG has no authority over the prosecutorial arm of the state. “That is the responsibility of the Director of Public Prosecutions, an independent office because the Attorney General himself can be prosecuted,” he said.

Nandlall noted that while the decision shows that government has no confidence in the ability of the DPP to prosecute such serious matters, the DPP is nonetheless the sole, exclusive and constitutional authority vested with the responsibility of prosecuting criminal offences in Guyana. In the discharge of those functions, he said, the DPP is not subject to the direction or control of any person or authority, as is outlined in the Constitution.

“They cannot rely on the DPP because they cannot give the DPP’s office the directions, which they wish to. So, what they have done instead is to create a band of special prosecutors comprising of persons hand-picked, all of whom are close to the administration,” he added, while accusing the government of undertaking politically-driven prosecutions.

Nandlall stated that he can list the “government-affiliated” law offices the chosen special prosecutors practice out of.

He added that the lawyers are still engaged in private practice but are being paid by the Ministry of Legal Affairs. “The fiat states that the prosecutors are authorised to prosecute at no cost to the state… but $100 million of taxpayers’ money are paying them. That is obtaining money by false pretense,” he charged while stressing that Williams has copies of the fiats and would know what it states.

Nandlall maintained that the AG has no role in the prosecution of criminal offences, simply because that responsibility is vested by the constitution in the DPP. “The rationale is that an entire government can also be prosecuted and that is why the office of the DPP provides an oversight function and it has the authority to prosecute the entire government and that is why prosecutorial responsibilities are not part of the executive function but are part of the functional responsibilities of an independent constitutional office,” he explained.

‘A perversity’

Nandlall stressed that the constitutional doctrine has now been “contaminated, undermined and violated” by the executive selecting “close allies” to prosecute offences that originate from forensic audit reports done by forensic auditors handpicked by the administration and investigated by the Special Organised Crime Unit (SOCU).

Although SOCU is an arm of the police force, he charged that any lawyer that has interacted with it over the last few years will attest to the political influence that minister has over it. “There is a hired prosecutorial arm in relation to certain type of offence, involving certain types of defendants contaminated by politics. This is a perversity. You can’t have a fair trial. The administration of justice cannot deliver fairness and justice when it is polluted and contaminated in the manner that I have outlined,” he added.

He said too that he and other members of the opposition will continue to raise this issue whenever the opportunity presents itself in the National Assembly, because “we are all concerned and every Guyanese should be concerned about attempts to control, undermine and emasculate the judicial system and the administration of justice in Guyana and when that happens no Guyanese will be safe because we all have to turn to that system for protection.”

Nandlall further said that the money for the prosecutors could have been better spent on boosting the capacity of the DPP’s Chambers and the large sum spent to conduct the forensic audits could also have been better spent on improving the Auditor General’s office. On the former, he noted that while the government is prepared to pay special prosecutors $100 million, the DPP’s proposed budget for 2018 was slashed by the Finance Minister by approximately $50 million last Friday.

“We [the people] need to appreciate that the DPP is responsible for prosecuting every serious offense in this country and their budget is being cut whereas monies are doled out to handpicked special prosecutors who are given selective politically-driven cases to prosecute. This clearly shows where the government stands in relation to serious crimes in the country,” Nandlall said.

The DPP has publicly complained that SOCU is not conducting quality investigations.

Williams last Wednesday expressed satisfaction with the work that the attorneys are doing and said that while they are working there is still lots more to be done.

When asked on the sidelines of the Caribbean Financial Action Task Force plenary session at the Georgetown Marriott whether he was satisfied with the work of the special prosecutors, he said it was “excellent.”

When Stabroek News persisted, Williams then stated, “You gotta tell me. You satisfied with them?”

The AG, while mentioning that the special prosecutors have several matters before the court, expressed hope that more would reach a similar stage. He could not defend the absence of the special prosecutors from the recently dismissed New Guyana Marketing Corporation fraud case.

Williams stressed that the work being done by the special prosecutors could be “stepped up a bit more,” although he did not elaborate on the work he was referring to.

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