Did Our Constitution Also Sank With the Barima?

 MV BARIMA · ACCOUNTABILITY & THE RULE OF LAW

Did Our Constitution Also Sank With the Barima?

Fifteen attorneys stood before the court on Monday. Not one asked the question the Constitution obliges someone to ask.

Board Editorial

On Monday, the matter of Kevin Price, Rondell Roberts and Delon Granderson was called for hearing, and once more it was adjourned. Attorney-at-law Eden Corbin, speaking on behalf of a defence team numbering more than fifteen lawyers, confirmed that the prosecution had complied with an earlier direction to produce part of its case file. The matter was set down for September.

The three accused, each presumed innocent under the Constitution of Guyana, returned to custody, where they have now remained since charges were instutited.

What did not happen on Monday deserves at least as much scrutiny as what did. Despite the presence of more than fifteen attorneys-at-law, no application for bail was made. No application for constitutional relief was made. The defence, by its own team’s account as reported, offered no explanation for the omission.

This is not a case where the absence of an argument can be attributed to a shortage of counsel, or a shortage of time to prepare one. It is the presence of capacity alongside the absence of a specific argument that ought to trouble every Guyanese who takes the Constitution seriously.

A GAP THE STATE WROTE INTO LAW

Guyana’s shipping regulations, as maritime scholar Robert C. Millington has documented, divide vessels into two regimes.

One governs small boats under twenty-four metres, and requires stability checks, passenger counts and safety drills. The other governs cargo vessels, and explicitly excludes anything carrying passengers.

The MV Barima measured roughly 40.26 metres. She was too large for the small-boat protections and specifically excluded from the cargo-ship regime. She fell, by Millington’s account, into a gap where almost nothing statutory applied to her at all — a gap in which, on his reckoning, a wooden ferry half her size carried more legal safety obligations than the vessel the state placed over 170 lives upon.

This is not a detail confined to a scholarly footnote. It reframes the entire premise on which continued detention has so far rested.             A regulatory vacuum of this kind is not an accident of poor drafting discovered after the fact. It is, on the documented record, a hole regulators had years to notice and did not close.

Section 3(3) of the Guyana Shipping Act names MARAD’s own Director as the legal owner of state-registered vessels, collapsing the distinction between regulator and regulated.

MARAD itself disclosed, following an earlier fatal incident in 2022, that it employed only six certified marine surveyors to inspect more than 2,000 vessels — and was still advertising a vacant surveyor’s post as recently as December 2025, months before the Barima went down.

The state cannot rely on the gravity of this tragedy to justify continued detention while its own statute book explains why no one was ever required to determine whether the tragedy could be prevented.

NINE QUESTIONS, AND WHO CAN ACTUALLY ANSWER THEM

Millington’s paper poses the questions that any serious inquiry into the Barima disaster must answer: whether the vessel was seaworthy, who certified it, whether prior inspection reports were acted upon, whether stability calculations were properly performed, whether lifesaving systems were operational, whether regulatory agencies were aware of deficiencies, and whether management decisions — agency management as much as ship’s management — contributed to what happened.

Set against the 24-metre gap, these questions answer themselves in one crucial respect: they are institutional questions, resting on institutional records, answerable by MARAD’s own inspection archive and by the technical panel now empanelled on the Commission of Inquiry.

These are not questions whose answers sit in the possession of a captain, a chief mate, or a loading superintendent.

That distinction is not a defence brief. It is a constitutional one. Continued remand is not punishment; it is an exceptional measure that temporarily restrains persons who remain presumed innocent, and it must be justified on grounds recognised by law — flight risk, interference with witnesses, obstruction of justice.

If the true justification offered is the scale of the tragedy itself, that is not a ground the Constitution recognises. And if the technical evidence required to establish where responsibility actually lies is not in the defendants’ possession but in the state’s own regulatory archive — an archive the state is still assembling before its own Commission of Inquiry — then the argument for continued detention weakens with each week that archive remains incomplete.

FIFTEEN LAWYERS, AND A SILENCE THAT REQUIRES AN ANSWER

Defence attorney Dexter Todd has, to his credit, made much of this record publicly. He has argued that seaworthiness was never the crew’s responsibility to determine, that the charges were laid before any comprehensive technical investigation had begun, and that the prosecution’s claim of overloading was made before an official manifest was verified.

These are, in substance, the facts that would support a constitutional application under Article 139, which protects personal liberty, and Article 144, which guarantees a fair hearing within a reasonable time. They are not new facts. They have been on the public record since the week the charges were laid.

What has not appeared, from a defence team now numbering more than fifteen attorneys, is the application itself. This publication  does not know why. We decline to speculate as to motive, and we caution others against doing so absent evidence. But the absence itself is a matter of public record, and it is a matter this news outlet is entitled — indeed obliged — to note.

A team of that size is not wanting for the capacity to file a constitutional motion.

Whatever the reason for the omission, the effect is the same: the one avenue expressly provided by the Constitution to test whether continued detention remains lawful has not, to date, been tested.

TWO OBJECTIVES, NOT ONE

Every Guyanese should want those responsible for this tragedy identified through a fair, independent and evidence-based process.        Every Guyanese should also want to ensure that no citizen loses his liberty except in accordance with the Constitution. These are not competing objectives. They are the same objective, viewed from two directions. A justice system that secures a conviction while bypassing the liberty guarantees that make the conviction legitimate has not vindicated the 73 lives lost on the Barima. It has simply added a further, quieter injury to the ledger.

The Constitution did not sink with the MV Barima. But it will not defend itself either. If the facts already on the public record — a regulatory gap the state had years to close, a surveyor shortage the state itself disclosed, a manifest the state has not verified — do not warrant a constitutional test of continued detention, this publication  struggles to imagine what would.

That test has not yet been brought. Guyana is entitled to ask why.

— THE BOARD