Sentenced by Parliament

Parliament's dictate took its full effect last Friday when a High Court judge, in passing sentence on a convict, superimposed the legislature's mandatory 15 years, in place of the sentence that the judge initially thought appropriate, that of 12 years' imprisonment.

This case represents a classic demonstration of the crossing of the line by the legislature on the all-important constitutional rights of the citizen; our freedom should be, ultimately, the province of our judges. Parliament passes laws for our good governance, but the issue of the measure of sentence to be handed down against a convict has always been placed in the hands of our judges.

By way of example, I recall a judge confessing to the dilemma he faced after a jury returned a verdict of not guilty of murder, but guilty of manslaughter. The man to be sentenced had thrown a chair at his sister who had sworn at their mother. The leg of the chair broke, and it became a spiked missile which pierced his sister's body, leaving her dead. Applying all the principles of sentencing, the experienced judge gave him a non-custodial sentence. The Parliament did not dictate on that occasion what sentence should be imposed, although there was loss of life.

sentence extended

Last Friday, a mitigation plea was entered on behalf of a convict in the Gun Court. It included the fact that he attained the age of 30 years with only one previous conviction for the offence of absconding bail. Further, the accused was not armed during the commission of the offence, but his associates had guns in their waistbands, which they never drew. The judge, in her wisdom, imposed a sentence of 12 years. Her Ladyship, having been reminded by the prosecution that our Parliament in June last year passed a law dictating to the judiciary that all gun-related offences must be visited upon with a minimum 15-year sentence, discarded the 12 years and imposed a sentence of 15 years. This was Parliament entering the courtroom, hijacking the judiciary and disarming the judge of her constitutional function regarding the appropriate sentence to be imposed on a citizen.

In the wake of the 'new' Charter of Rights passed some three weeks ago, we have an encroachment, rather than a separation, of powers between the judiciary and the legislature.

principle ripped to shreds

The idea of the separation of powers - that is that the legislature cannot interfere with the discretion of a judge in imposing punishment - lies only in theory and is no longer worth the paper it is written on. Its eloquent spokesman misled us - or possibly he cannot recall when he led a different party, new and different at the time - and made an about-turn to support this unconstitutional encroachment on the judiciary.

Section 15 of the Constitution makes it abundantly clear that no person shall be deprived of his personal liberty save "... in the execution of the sentence ... of a court". Last Friday, another arm of the State determined that sentence!

The fact is that the question of proportionality and individualised sentencing can play no part in the imposition of a mandatory sentence. It emasculates the judges, makes a mockery of their inherent jurisdiction to determine how long the citizen's liberty shall be taken away, where Parliament - an uninvited guest - leaves Gordon House and invades the hallowed halls of our courts.

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