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