By Benjamin Flowers Staff Reporter
Prime Minister Hon. Dean Barrow has said that the Peoples United Party should launch private prosecution proceedings against ex-Minister of State Elvin Penner. But PUP legal advisor, Anthony Sylvester, said that under the law, that’s not possible.
“Under the Summary Jurisdiction Procedure Act, we can’t launch private prosecution proceedings because we do not have first-hand knowledge of the offense,” Sylvester said Wednesday.
He explained that the PUP do not have access to the necessary documentation, or witnesses to have a successful case and maintains that only Minister of Immigration, the employees at the immigration office, and to a certain extent the Prime Minister, have access to the information.
In lieu of those materials the PUP cannot prosecute Penner privately, leaving the Police and the Office of the Director of Public Prosecutions to levy charges within the legal limit of six months.
“But how can the DPP levy charges if no investigation has been conducted by the police?” Sylvester contended.
On Monday, Barrow told the media that the opposition has a right to bring its own case against Penner, instead of trying to get the court to force the Commissioner of Police to levy charges through court action.
“If they feel so strongly; if there is evidence to justify a persecution, lodge a private persecution,” Barrow said.
On Wednesday, under directive from the Leader of the Opposition Hon. Francis Fonseca, law firm Musa and Balderamos filed for judicial review proceedings for a writ of mandamus form the court, compelling the Commissioner of Police Allen Whylie, to carry out an investigation against Penner.
What the law says
Section 19 of the Summary Jurisdiction Procedure Act Chapter 99 of the laws of Belize Revised Edition 2000 states:
“Any person may make a complaint against any other person committing a summary conviction offense unless it appears from the statute on which the complaint is founded that a complaint for that offense shall be made only by a particular person or class of persons.”
The section does empower persons with the ability to privately bring a complaint against someone for a summary conviction offense.
However, there are requirements under Section 21 (4) that the complaint must be accompanied by a statement of the specific offense being charged, “together with such particulars as may be necessary for giving reasonable information as to the nature of the charge.”
Section 21 (5) requires that “if the offense charged is one created by statute, shall contain a reference to the section of the statute creating the offense.”
While the PUP have satisfied the requirement by citing the offense under Section 3 (1) of the Passports Act, Sylvester’s argument is that without the material yielded from the police investigation the case will not stand in court.