Orville Taylor | Use lawful means to achieve lawful purposes

Having had a snack of jackfruit and papaya, then finger food of saltfish and crackers, while sipping two stouts at the Senior Common Room (SCR) Bar, one of my female colleagues gave me a warm embrace, which lasted 30 seconds. A blush of lipstick, barely visible on my black collar and the fragrance of her brand-name perfume followed me home like a bad reputation.

Of course, these scents causing ‘an adverse analytic finding’, the prima facie case was made, and I ended up sleeping in the dog house. Worse, we do not own a dog. However, I was guilty until the evidence came forward days later that her closest friend was sitting incognito at the SCR, and having seen nothing to report, had chosen not to. However, by then, the couch had been my best friend, and the damage was already done. For the record, it didn’t help that I later pointed out that the ammonia-based cleaner lingering on her hands had a very familiar smell as well.

Being sentenced on the basis of a policeman’s gut feelings, intelligence, or information cannot be right. Denying a suspect bail or detaining her for an inordinate period outside of the parameters outlined under the Constitution or Bail Act is simply wrong.

All well-thinking residents of this country are justifiably exasperated regarding the level of crime and violence as we pay attention to the events in St James and Spanish Town in particular. What looks like an attempt to ignite the courthouse in the Old Capital, barefaced shootings in the middle of the day and town, reprisal killing of a woman, vendors crying for help, reports (though unsubstantiated) of extortion all seem to be the basis of a conclusion that there is a crisis and thus, an ‘emergency.’

CANNOT EXIST ONLY IN MIND

But an emergency cannot exist only in the mind of persons or in the accounts of journalists and academics or even politicians. Believe me, the law really is an ass but it is the only means of transport for the triumphant entry into the promised life of eternal peace. And yes, those who seek to uphold a regime of lawfulness, justice, and peace must be willing to follow all the Stations of the Crosses and be crucified if necessary. That is the only way.

Our Constitution is not simply a bugbear or obstacle. It is the framework of the society, without which the system shall crumble. Creating zero-sum analogies of rights of criminals vs rights of the citizens is totally missing the boat. A person is only a criminal when a court says that he is, which is why due process is so sacrosanct. True, fighting fire with fire is a nice tagline. However, a fireman has clear guidelines as to how he manages the flames and lights the self-explanatory ‘controlled blaze’. The fireman’s rules and procedures protects us all, but the criminal will make us get an ‘arson.’

In a democracy, and in order to have sustained peace, the holders of law and power must follow the rules. If not, there is nothing to distinguish us from the criminals, and ultimately, we have anarchy. Police officers and prosecutors have to follow the rule of the existing law. That is why they are not like Sylvester Stallone in Judge Dredd where he arrests, judges, and carry out sentences.

I have no issue with extraordinary circumstances requiring extraordinary measures. But given that they are precisely that, they must be determined to be so, within the framework of the Constitution, and if necessary, by the independent judiciary.

LAWFUL MEANS

The recent unanimous pushback against the proposed changes to the Bail Act and the almost $18 million judgement in favour of Roshaine Clarke, who was deemed to have been unconstitutionally detained under the state of public emergency in 2018, are neither anomalous nor unpatriotic. Rather, they are reminders that a lawful society must use lawful means to achieve lawful purposes.

Declaring a state of emergency or denying a person bail requires a relatively light burden of proof. One does not have to go beyond a reasonable doubt. Some mixture of a prima facie case, a reasonable bystander, and the balance of probability is enough. Moreover, a judge who grants bail can have her decision appealed by the prosecutor with or without the prodding of the police.

Answer this question: If a prosecutor and the police cannot cross over the lower hurdle of proof for the denial of bail; how in heaven’s name will they have a case regarding the criminal activity such as gang membership, which requires much stronger evidence?

The dismissal of the cases against the suspected gang members recently and above-mentioned involving Clarke point to what Security Minister Horace Chang concedes, “Increase the investigation and surveillance. It’s evidence that’s going to make the difference.” His colleague Justice Minister Delroy Chuck, QC, one of the best legal minds in CARICOM, concedes, “… evidence can be collected to make it crystal clear if the person is a member of a gang and is actually participating in gang activities. So I don’t think lowering the bar is the right approach.”

There is no other way.

- Dr Orville Taylor is head of the Department of Sociology at The University of the West Indies, a radio talk-show host, and author of ‘Broken Promises, Hearts and Pockets’. Send feedback to columns@gleanerjm.com and tayloronblackline@hotmail.com.