The Director of Public Prosecutions Roger Gaspard has washed his hands of the matter involving the failure of coup leader Yasin Abu Bakr to give testimony before the Commission of Enquiry into the 1990 attempted coup.
Gaspard has taken the position that he will not lay charges against Bakr for failing to answer a summons of the commission to appear before it.
Instead, the DPP has thrown the ball back in the commission's court. He told the commission it has the legal power to direct the Commissioner of Police to "prosecute the proceedings" for breach of Section 16.
Gaspard in a letter to the commission's secretary, Larraine Lutchmedial, said it would be "inadvisable, if not punitive" for him to lay charges against Bakr under Section 16 of the Commission of Enquiry Act.
That act empowers the DPP to take action against anyone refusing to obey a summons to attend the Commission.
In a letter dated September 12, the commission indicated to Gaspard it had agreed to formally refer the matter of Bakr's non-attendance to him in order that he takes appropriate action in accordance with Section 16 of the Commission of Enquiry Act.
However, in a letter to Lutchmedial dated January 29, 2013, Gaspard said: "I am of the view that given that the refusal of the witness to attend the hearing of the commission or to offer any 'sufficient cause' for doing so, despite being granted additional time to so do, is a matter that the commission should properly deal with in the maintenance of its own authority and protection of its proceedings; the powers of the commission granted under the (Commission of Enquiry) Act being akin to that of a High Court."
The DPP argued that if he were to take action against Bakr, the coup leader would use this as a basis for a stay in his retrial for sedition and incitement to demand with menaces which is likely to be fixed for trial in 2013.
Gaspard said in that trial, issues of Bakr's involvement in the 1990 attempted coup are likely "(as in the previous trial) to form the basis of an application, by the prosecution, to admit 'bad character' evidence of the accused".
"In those circumstances, it might be considered inadvisable if not punitive were the Director to direct charges for this accused's failure to attend your Commission of Enquiry to testify as to the integral part he played in the very attempted coup," Gaspard said.
Gaspard said these occurrences must be read in the light of the fact that in the last six years since Bakr was indicted, no fewer than six applications (all unsuccessful) had been made by Bakr's attorneys for this trial to be stayed on the basis of prejudicial pretrial publicity.
"Were I as Director to direct charges to be laid for his failure to attend your particular commission, this itself would likely generate a type of publicity that would necessarily provide additional ammunition in the arsenal of the accused for any such future application, where would be bound to follow," he said.
Gaspard added that it was also probable that Bakr would use any such action on his part to seek to demonstrate prosecutorial bias against him and also to seek a stay on this basis—as he sought to do in a preliminary application in the first trial.
"In all the circumstances, therefore, I am inclined to the view and I respectfully submit that the commission would be better advised to itself direct the Commissioner of Police to 'commence and prosecute the proceedings' for breach of Section 16," Gaspard stated.
The DPP pointed out that the Section "as you are doubtless aware" provides that no proceedings for any penalty under the Act shall be commenced except by the direction of the Director of Public Prosecutions or of the Commissioners.
He said while the act does contemplate the Director initiating such proceedings, it seems to be that intervention by the Director would be more appropriate, for instance, in cases of the wilful insulting of the commissioner or secretary or the wilful interruption of the proceedings.
In such instances where direct evidence may be required of these very parties and so as to ensure there is no conflict of interest, it might be prudent for a third party such as the DPP to commence criminal proceedings.
The DPP concluded by confessing that the matter had occasioned him "much anxiety and has attracted my most careful contemplation".
Bakr had indicated last year that he could not testify at the commission, citing adverse pretrial publicity, the likelihood that others may seek to use his testimony before the commission to his detriment at the sedition trial and his poor health. See Page 7