Public affairs: Rocky ride for crime bills
Published:Sunday | June 13, 2010 | 12:00 AM
Edmond Campbell, Senior Staff Reporter
SHARP CLASHES OF opi-nion have so far characterised debate in the Lower House on the six anti-crime bills now before Parliament.
Since the start of the debate less than two weeks ago, lawmakers have locked horns over the mea-sures. This signals a rocky ride for the controversial bills prescribed by the Bruce Golding administration as necessary tools in the fight to cramp organised crime and to significantly reduce the country's appalling murder rate.
In this debate, political lines may not be discernible, at least for one government member of parliament (MP) who shelved party loyalty on Tuesday and insisted that provisions in some of the proposed laws could create serious pitfalls for the country.
The six pieces of legislation evolved through bipartisan dialogue between the Government and Opposition. The discussion, dubbed 'The Vale Royal talks', was initiated as a response to the surging crime rate, particularly gun offences.
The anti-crime bills were introduced in the House of Represen-tatives in September 2008 and referred to a joint select committee of parliament for consideration. Following lengthy deliberations by committee members on a raft of submissions from various groups, including human-rights organisations, the church and lawyers, a report, which now forms the basis of the current debate, was submitted to parliament.
The opposition and a number of stakeholders had expressed reservations about provisions in the controversial statutes, and minor adjustments were made by the Government to two of the bills in an attempt to strike a compromise and reach consensus.
Discretionary judgement
But the changes made are seemingly cosmetic, at least in the estimation of some lawmakers and human-rights groups that have cautioned against encroachment by the legislature on the discretionary judgement of the judiciary in handing down sentences to convicted persons.
During last week's debate in Gordon House, a number of parliamentarians decried provisions in two of the anti-crime bills that seek to impose mandatory minimum 15-year sentences on persons convicted in a Circuit Court of firearm offences.
The bills containing those provisions are An Act to further amend the Firearms Act and An Act to amend the offences against the person Act.
Penalties under the proposed amended Firearms Act could attract sentences of between 15 years and life imprisonment.
However, one of the anti-crime bills - An Act to amend the Parole Act - provides that persons sentenced to imprisonment for life, or for a period of 15 years or more, for serious firearm offences, should not be eligible for parole until he serves a minimum of 10 years.
On Tuesday, opposition leader Portia Simpson Miller, in her contribution to the debate, acknow-ledged that there was an urgent need to tackle the scourge of crime and violence plaguing the island.
However, she argued that despite the country's anxiety to stamp out crime, "we have to ensure that decent and law-abiding citizens do not become the victims of the very laws that are meant to safeguard their rights".
Simpson Miller proposed that in the case of illegal possession of firearm, the chief justice should be invited to institute guidelines to the judges as to the "sort of matters they may take into account when considering the important issue of sentencing.
"Those guidelines may be reviewed and changed from time to time. If we pass a law which includes a mandatory sentence, we would effectively tie the hands of our judges even to the extent that the Court of Appeal would have no power to reverse any sentence where the inte-rest of justice required it," she said.
Prime Minister Bruce Golding, in opening the debate less than two weeks ago, said the minimum 15-year sentence for firearm offences was intended to dissuade persons from committing such unlawful acts.
"The intention of that is to send a very strong signal to people that having an illegal firearm, using a firearm to commit a crime, is a severe offence that is going to attract severe punishment," Golding said.
Responding to concerns that the legislature was trespassing on the judge's discretion, Golding posited that parliament "does circumscribe the judge's discretion; we impose maximum sentences, we are setting those parameters".
The prime minister reminded his colleagues that of the record 1,680 Jamaicans murdered last year, about 79 per cent of those killed were killed at the hands of gunmen.
"We have to send a clear signal that we are going to get tough. We know we have to catch you first before we can give you the minimum of 15 years. We have to improve on that as well," he said.
Golding is of the view that when individuals commit serious offences but receive light sentences, that is in conflict with the intent of the legislature.
Leading voice
Clive Mullings, an attorney-at-law and government back-bencher, who, despite being axed from Golding's Cabinet, remains a leading voice in parliamentary debates, made it clear that party affiliation would not colour his position on the crime bills.
In a forthright presentation, Mullings, the West Central MP, asserted that laws were passed at times "in the heat of circumstances; that was the worst time to do it.
"Even as these crime bills are being put forward as the necessary fight against crime, how many of those who are championing this cause have read them and are aware of the perilous pitfalls that are there?" he questioned.
Mullings, supporting a point made by South East St Elizabeth MP Joseph Witter, charged that the legal holder of a firearm could be accused of assaulting someone with his gun and by virtue of "judicial reasoning is held to be in illegal possession of a firearm.
"How many persons who are anxious for the rapid passage of these crime bills are aware of that pitfall?" he asked.
Some legislators have also argued that minimum-sentencing provisions of 15 years set out in two of the anti-crime measures threatened to nullify the effect of the far-reaching plea-bargaining law.
Both houses of parliament passed the plea-bargaining law in 2005, but the regulations to give effect to that statute were just approved in the House last week.
It provides a facility in which a negotiated plea with an accused could assist in securing evidence that would help the prosecution in moving against someone who may be a criminal mastermind.
Questions have been raised as to whether an accused person who enters into a plea-bargaining arrangement with the director of public prosecutions could secure a judgment below the mandatory 15-year sentence under the bill to amend the Firearms Act.
Not even a plea deal could forge a lesser sentence, Golding indicated, while responding to a query on Tuesday.
"If it is limited by those minimum sentences. It would, to a great extent, strangle the ability of the prosecution to achieve that goal," South St Catherine MP Fitz Jackson commented.
His position resonates with Mullings, who suggested that the crime bills might weaken the effect of the plea-bargaining law.
"How can you speak of plea-bargaining and there is a minimum? What are you going to bargain with?" he questioned.
Crime reports
Contending that the country was not bereft of ideas to solve crime, attorney-at-law Ronald Thwaites encouraged the administration to revisit the many crime reports and recommendations to find solutions.
Thwaites wants the provisions of the Justice Reform Commission to be fully engaged and for proposals in the Wolfe Report, MacMillan Report and the PERF report to be taken on-board.
Thwaites cautioned against the promulgation of the crime bills ,asserting that more time was needed to refine the measures.
"By themselves, they are bald and likely to be ineffective; at worst, they represent a further incursion into the constitutional and indeed, the divine, rights of all of our people without the proper safeguards," he said.
An Act to make Interim provision extending the powers of arrest and detention under the Constabulary Force Act was critically examined during last week's debate.
The proposed law will give the security forces additional powers to fight crime. It provides for the arrest and detention of a person outside of the locality in which special cordon and curfew powers are being exercised.
The interim provisions also extend the 24-hour period for which a person can be remanded in custody up to 72 hours. This bill has a sunset clause and as such, expires after a year unless extended by parliament.
Central Manchester MP and opposition spokesman on national security Peter Bunting took issue with the proposed adjustments.
He said the amendments ran counter to the principle of the presumption of innocence. "It encourages net fishing for criminals rather than spearfishing," he said.
According to Bunting, the approach of detaining scores of inner-city youth for "processing" had failed under the Suppression of Crimes Act.
Defending the crime bills, MP for Eastern St Andrew Dr St Aubyn Bartlett said the delayed passage of the crime bills only emboldened the criminal underworld to carry out their nefarious deeds.
"During the first five months of this year, there is record murder in Jamaica. While we sat on those six crime bills since 2008, the criminals were looking and laughing at us," he said.
Human-rights groups, lawyers and the parliamentary opposition continue to resist one of the pieces of legislation that proposes a 60-day detention period for persons charged with specified offences.
Despite minor adjustments to the bill - An Act to make interim provision in relation to the grant of bail in specified circumstances - there are still calls for its withdrawal.
The Government had inserted a clause for periodic judicial review. This means that a person charged with a serious offence would have to be taken before a judge after the first seven days for a review of his case and a determination of whether bail should be granted.
Fourteen-day intervals of court appearances for further review would follow.
But this tweaking of the bill does not sit well with Jacqueline Samuels-Brown, attorney-at-law.
"The law makes it very clear that bail is a constitutional right, and any attempt to deprive a person taken into custody of the consideration of bail is unconstitutional and wrong and oppressive," she in a Gleaner interview last week.
Convenor of Families Against State Terrorism, Yvonne McCalla-Sobers, said her organisation remained opposed to the bill.
"I happen to believe that the judges can do a better job than parliament of deciding whether somebody should get bail or not. The judge is able to make that assessment on a case-by-case basis. Parliament cannot," McCalla-Sobers told The Gleaner.