Rights under threat

Bert Samuels, Sunday Gleaner Contributor

The safeguards guaranteeing the independence of our judiciary have been explained to be not for the benefit of the holders of the office of judge, but rather for our courts to fearlessly enforce the rights of our citizens when called upon to do so. The Constitution (Section 100) makes it virtually impossible (save and except for illness or misbehaviour) to remove a judge once he is appointed by the Judicial Service Commission - a body independent of the executive arm of government - until he has attained the age of 65. The question of whether a judge of the Supreme Court is to be removed must be sanctioned by the final appellate court, the Privy Council. Finally, the pay of a judge cannot be altered to "his disadvantage during his continuance in office" (Section 101).

These constitutional arrangements are in place to guarantee the judiciary's independence and its separation from the other arms of government, namely the executive and the legislature.

Whereas I do not advocate that our judges be considered sacred cows - and I deeply believe that they are expected to be accountable, transparent and open - I am convinced that based on the laws passed in recent times, the legislature is intent on encroaching on the independence of our judiciary. The crime bills are a clear signal that as a matter of deliberate policy, the encroachment on our judiciary has resulted in the fettering of the constitutionally protected discretion of the judges.

proposed legislation

Our Parliament has proposed legislation signalling that the prosecution will be allowed to appeal acquittals where they are based on "corrupt or improper motives". These words seem to have more relevance as part of the terms of reference in the commission of enquiry currently being held than to the collective experience of trial lawyers at the criminal Bar. There is in place adequate punishment for any person - be it judge or juror - who delivers a corrupt verdict. We have had the precedent of a magistrate being imprisoned on those allegations and, recently, a juror being put away for attempting to sell a corrupt verdict. In light of these pre-existing remedies, with stiff criminal sanctions, one has to question the agenda of those who have lobbied the Government to take these oppressive and retrograde steps.

When, on March 2, 2010, our prime minister declared on the floor of the legislature that he was prepared to pay a political price (sic) for upholding the constitutional right we are entitled to, I believed him. In a complete turnaround, six months later, his Parliament is repeatedly trampling on the very rights he swore to uphold.

Our elected representatives have, in the aforementioned six months, embarked on a legislative campaign to:

(a) Dictate to our courts that they cannot consider the right to bail until the lapse of several days, delaying the right to trial within a reasonable time, and making nonsense of the presumption of innocence and our right to liberty, in defiance of Section 15 of the Constitution.

(b) Lengthen the time within which the police are compelled to take an arrested citizen to court, in defiance of a clear constitutional provision that he ought to be taken, upon being detained, before a judge "without delay" (Section 15 (3)).

(c) Make incursions into the purview of our judges when they have arrogated to themselves the right to determine the sentence to be imposed on gun offenders, taking sentencing discretion away from our duly appointed judges.

(d) Allow the appealing of judges' grant of bail to accused persons, leading to delays for the accused to enjoy his liberty, and is born out of a mistrust of our judges in their exercise of the time-honoured discretion to uphold the presumption of innocence.

(e) no longer require unanimous verdicts to be admitted in murder cases, arguing expediency over unanimity.

The trend is crystal clear. They have tossed aside the need for a Charter of Rights, and, in its place, imposed on us a Charter of Diminished Rights. Our judges have lost the power to be the untouchable guardians of our Constitution. Bogle, in 1865, fought and lost his life because he would not accept the poor conditions heaped on the voiceless and powerless, poor black masses by the planter-steeped legislature of the time. Are we now, a century and a half later, prepared to disregard our 1962 Constitution and again deny the people their hard-fought-for rights?

double jeopardy

The campaign continues, further encroaching on the independence of the judiciary. It is proposed that the director of public prosecutions be able to challenge the not-guilty verdict declared by a competent tribunal by empowering the prosecution to appeal such a verdict. We cannot turn a blind eye to this continuing trend.

A defendant found 'not guilty' by an independent and impartial tribunal will now face a second jeopardy by having to return to court to defend the challenge of the prosecutor appealing his acquittal. He must, if he is unsuccessful, again employ a lawyer to conduct his case in the retrial ordered! Again he must, once more, go to the back of the waiting line to have his matter heard in a court system with a huge case backlog.

The all-powerful state apparatus has got its way again. Its members seem to have the ear of the legislature in that all the laws referred to above have either been initiated by them, or have received their full backing. The constitutional rights of the poor defendant the prime minister said he was prepared to defend - notwithstanding the political price he may have to pay - have been shafted.

I have never, in all my time, seen a Parliament so preoccupied with pursuing the agenda of the prosecution, totally ignoring the voice of the defence Bar. This one-sided approach has resulted in the loss of our rights, and the weakening of the arm of Government sworn to protect them. Do we still have a government and a prime minister who have sworn to uphold the Constitution of Jamaica?

Bert S. Samuels is an attorney-at-law. Email feedback to columns@gleanerjm.com and bert.samuels@gmail.com.