Monday, July 18, 2011

Jamaica's Supreme Court ruled that certain amendments to Jamaica's Bail Act were unconstitutional... as The Bahamas attempts to craft amendments to its Bail and Criminal Justice Acts to keep serious offenders off the streets, and meet Privy Council standards to justify capital punishment in murder cases

Jamaica Supreme Court against mandatory bail

tribune242 editorial

Nassau, Bahamas

AS THE Bahamas attempts to craft amendments to the Bail and Criminal Justice Acts to keep serious offenders off the streets, and meet Privy Council standards to justify capital punishment in murder cases, Jamaica's Supreme Court ruled Friday that certain amendments to Jamaica's Bail Act were unconstitutional.

Like the Bahamas, serious crime has bedeviled Jamaica for many years, and, again like the Bahamas, Jamaica has attempted to stiffen its laws to protect its citizens.

In July last year, under the amendments, persons charged with serious offences in Jamaica could be denied bail up to 60 days.

However, two Jamaican lawyers, whose clients, charged with murder, were affected by the provision, challenged the amendment's removal of the citizen's right to bail. Of course, in all of these arguments, legal luminaries fail to factor in the law-abiding citizen's right to security and the government's duty to provide that security.

The two Jamaican lawyers also objected to the amendment's interference with the role of the judge to decide who should or should not get bail. It is true that judges should have the right to use their discretion in each case as to how each accused is treated. However, how does a community protect itself against a liberal judiciary that does not seem to appreciate the difficulties of the society in which it exists?

We have only to scan Nassau's murders of the past few weeks to appreciate what it would have meant if we had had a mandatory time in which murder accused, for example, could be held without bail. Several accused who are now dead would still be alive today to face trial. But no, a judge exercised his discretion, a lawyer won his client's case for bail, a gun was fired, and a funeral followed.

The cynic would say that the courts have been saved much time, and their criminal calendar reduced by the criminals taking the law into their own hands, by-passing trial and carrying out executions on the sidewalks. Vigilante justice will send our crime figures through the roof, threaten the country's reputation as a safe tourist resort, and our communities as safe places in which to live. We now have a choice -- mandatory bail for a reasonable period of time so that an accused person can get a fair trial, or let cases slide through the courts as they now do with the criminal deciding the verdict and becoming the executioner. Maybe these lawyers, who are trying to score brownie points with the number of clients they can get out on bail, should stop and think of the safety of their clients, even if they apparently give no thought to the safety of the community.

According to the report in Jamaica's Gleaner "the 60-day period in custody was subject to the right of the person being held to be brought before the court after seven days, and thereafter at 14-day intervals, at which time the court reviews the question of whether the person should continue to be held in custody or bail be considered. The prosecution also had the right to appeal against the granting of bail."

It seemed a reasonable proposal, especially in view of the danger zone in which the average Jamaican was being forced to live because of that country's level of crime. However, Jamaica's Supreme Court in a unanimous vote struck it out as unconstitutional.

The Independent Jamaica Council for Human Rights praised the Supreme Court ruling saying that some human rights are protected by the constitution.

Some years ago Jamaicans were vocal about the Caribbean having its own court to replace the Privy Council, presumably on the very issue of being able to impose capital punishment in murder cases. Now that the Caribbean Court of Justice (CCJ) is a reality -- established on February 14, 2001, coming into force in 2003-- the only countries so far to sign on have been Barbados, Belize and Guyana -- the rest, including Jamaica, are still with the judicial Committee of the Privy Council.

In fact the very issue that brought the Caribbean Court into existence -- the refusal of the Privy Council to allow capital punishment for persons convicted of murder who had spent more than five years in prison -- was in the end what kept Jamaica out.

The Jamaica Labour Party resisted the full powers of the CCJ on the grounds that it was a hanging court.

It's now up to the Bahamas government to bring in amendments that will help this community to curb crime and keep a serious offender behind bars until his case can be heard -- within a reasonable time -- before the courts.

July 18, 2011

tribune242 editorial