Dear Editor,
The Office of the Director of Public Prosecutions (DPP) correctly states that, pursuant to Article 187 of the Constitution of the Cooperative Republic of Guyana, it is an independent constitutional office not subject to the direction or control of any other person or authority. That constitutional independence is fundamental to preserving the integrity of the criminal justice system.
However, constitutional independence must never be confused with constitutional immunity. The Constitution grants the DPP the authority to institute and undertake criminal proceedings, but it does not place the Office above the law, above constitutional principles, or beyond legitimate public scrutiny. Every constitutional power must be exercised within the limits of the law, guided by fairness, objectivity, due process, and the rule of law. Necessary check and balances exist through our legal systems to protect the rights citizens.
The central issue is therefore not whether the DPP possesses the constitutional authority to institute criminal proceedings. That authority is beyond dispute. The issue is whether that authority has been exercised in accordance with the legal standards governing the offence of murder and in a manner that upholds public confidence in the administration of justice.
The statement issued by the DPP places considerable emphasis on the constitutional powers of the Office, yet provides little explanation as to how the available evidence satisfies the legal ingredients required to sustain charges of murder. Constitutional authority explains who may bring charges; it does not explain why the legal threshold for murder has been met. Those are two entirely separate legal questions.
Murder is one of the most serious offences known to law. Its elements are established by law and longstanding legal principles. The loss of seventy-two lives is an immense national tragedy, but the scale of that tragedy cannot substitute for the legal requirements necessary to establish criminal liability for murder. Public outrage, political pressure, or the understandable demand for accountability cannot lower the evidential threshold required by law.
Article 144 of the Constitution guarantees the protection of the law and the right to a fair hearing before an independent and impartial court. Embedded within that constitutional protection is the fundamental principle that every accused person is presumed innocent until proven guilty according to law. The institution of criminal charges must therefore be founded upon credible, reliable, and sufficient evidence capable of supporting every legal element of the offence alleged.
The DPP states that the decision was based upon “careful consideration of the evidence presented.” That statement, however, raises legitimate constitutional and legal questions which deserve clear and transparent answers.
- What evidence was presented to the DPP?
- Dose the available evidence only support a charge for murder or other offence?
- Has the evidence been thoroughly assessed to determine whether other individuals may also be held accountable for the events in question?
- Who conducted the investigation?
- Was the investigation complete, independent, impartial, and professionally executed?
- Were all relevant witnesses interviewed and all available forensic and documentary evidence examined?
- Were the seaworthiness of the vessel, its maintenance history, inspections, licensing, safety compliance, and regulatory oversight fully investigated before charges were instituted?
Were the actions or omissions of public authorities and regulatory agencies subjected to the same level of scrutiny as those against whom charges have been laid?
These are not political questions. They are legal questions that go directly to the integrity of the prosecutorial process.
A prosecutorial decision can rise no higher than the quality and completeness of the investigation upon which it is based. If the investigation failed to examine every relevant fact or every potentially responsible party, then legitimate questions arise as to whether the evidential threshold for murder had objectively been satisfied before such grave charges were instituted.
The DPP also states that legal authorities from the United Kingdom, Commonwealth jurisdictions, and the European Court of Human Rights were considered. Comparative jurisprudence may provide guidance on legal principles, but it cannot replace the requirement that the facts of this particular case satisfy the legal definition and evidential requirements of murder under the laws of Guyana.
The announcement of a Commission of Inquiry further raises significant public interest considerations. While it is legally possible for criminal proceedings and a Commission of Inquiry to proceed simultaneously, the establishment of such a Commission itself acknowledges that substantial factual questions remain to be examined. If the Commission is expected to investigate issues concerning the vessel’s condition, regulatory oversight, systemic failures, and possible institutional accountability, then it is reasonable for the public to ask whether all material facts had been sufficiently established before murder charges were instituted.
The administration of justice requires more than the exercise of constitutional power. It requires that such power be exercised with restraint, impartiality, transparency, and unwavering fidelity to the law. Prosecutorial discretion is not prosecutorial immunity. It is a legal discretion that must always be exercised within the boundaries established by the Constitution, the law, the evidence, and the interests of justice.
No constitutional office, however independent, is above constitutional accountability. Independence exists to protect justice from external influence—not to shield prosecutorial decisions from legitimate legal examination.
This national tragedy demands accountability wherever the evidence leads. If criminal responsibility exists, those responsible should be prosecuted. Equally, if regulatory failures, institutional negligence, or governmental omissions contributed to these events, those matters must also be investigated without fear, favour, affection, or ill will.
Justice cannot be selective. It cannot be influenced by public pressure, political expediency, or the desire to demonstrate swift governmental action. The rule of law demands a complete, impartial, and evidence-based pursuit of truth.
Ultimately, the public is not questioning whether the DPP has constitutional authority. The public is entitled to ask whether that authority has been exercised consistently with the Constitution, the rule of law, and the legal requirements governing the offence of murder. Those are not only legitimate questions—they are essential questions in any constitutional democracy committed to the fair and impartial administration of justice.
I wish to make it clear that this commentary is not written in support of, or opposition to, any political party, government, or individual. My position is not driven by political affiliation, but by my responsibility as a citizen exercising my democratic right to question, analyze, and engage in matters that affect the administration of justice and the protection of the rule of law.
A democratic society is strengthened when citizens can respectfully examine the actions of public institutions, particularly those entrusted with significant constitutional authority. Accountability and transparency are not acts of opposition; they are essential safeguards of democracy.
My concern is not with the pursuit of justice, nor with ensuring accountability for a tragedy of such magnitude. My concern is that justice must always be pursued through the proper application of the law, supported by credible evidence, due process, and constitutional principles.
As citizens, we must defend the integrity of our institutions by ensuring that power remains accountable to the law. The pursuit of truth must never be sacrificed for speed, public pressure, or political convenience.
“Power under the Constitution is a trust, not a possession; and those entrusted with authority must serve justice, not simply exercise power.”
Yours truly,
K. Fernandes
Community/Youth Leader/Citizen
