The judicial dismantling of the crime bills

Mark Golding, Guest Columnist

Last Friday, in deciding what I shall refer to as the Nation and Wright case, the Constitutional Court struck a blow for liberty and the rule of law in Jamaica by ruling that the entire Bail (Interim Provisions for Specified Offences) Act 2010, and most of the provisions in the Bail (Amendment) Act 2010, are unconstitutional and void.

Those two acts were the central pieces of the legislation, often referred to as the six crime bills, which the Government ushered through Parliament in July last year. When those crime bills were being debated, and in the Joint Select Committee which had considered them beforehand, the Opposition and several civil-society groups pointed out the anti-libertarian features of the legislation, and strongly questioned their constitutional status.

The Government would not recant, and proceeded to pass the bills, notwithstanding these serious concerns. Fortunately however, the Opposition's withholding of support for the bills, which have now been struck down by the court, has meant that they did not pass with the two-thirds majority that could have resulted in the human and civil rights guarantees in the Constitution being superseded.

In seeking to mitigate the embarrassment of this judicial dismantling of what it has been trumpeting as one of its achievements in office, the Government's reaction to the court's ruling in the Nation and Wright case has been misleading. Two ministers stated publicly last Friday that the offending legislation was struck down because of the new Charter of Rights. This is absolutely false.

The issue before the court in the Nation and Wright case was the resident magistrate's denial of bail to Mr Nation and Ms Wright in the summer of 2010, long before the new Charter of Rights came into effect. The court struck down the relevant provisions of the legislation because they violated sections and principles enshrined in the old Chapter III of the Constitution. As one of the learned judges put it: "It should be noted that the reference to the Constitution in this judgment is in respect of its provisions which were in force before the passing of the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act 2011. That act, which replaced Chapter III (sections 13-26) of the Constitution, was brought into force on 8 April 2011."

Less draconian

The court's decision in the Nation and Wright case has removed much of the sting from the crime bills, since the provisions curtailing the right to bill were the main crime-fighting elements of the legislation. Apart from the prosecution's right to appeal the grant of bail (which was preserved by the court, though the provision for mandatory detention during the appeal process was struck down), all that remains of the crime bills are the lengthy mandatory minimum sentences and mandatory deferral of parole in the case of certain offences involving firearms, and the extension of the permissible period for detention without charge (which is discussed later in this article).

Furthermore, the constitutional status of the mandatory minimum sentencing provisions also remains uncertain, since by enacting those provisions the legislature has effectively deprived the judiciary of its discretionary powers to ensure justice is done on the facts of each particular case. During the discussions on the crime bills, the Opposition pointed out to the Government that it may be argued that Parliament is thereby unconstitutionally interfering with the separation of powers which is fundamental to our democratic system of governance. Mr Justice Brooks has reminded us in the Nation and Wright case that, in a series of cases, the Privy Council has established that "legislation which contravenes the principle of the separation of powers, especially impinging on the authority of the court to grant bail and administer sentences, will be held void, unless passed by the majority required to amend the relevant section in the Constitution".

One more of the crime bills, the Constabulary Force (Interim Provisions for Arrest and Detention) Act, 2010, expires this month. Last Friday, the minister of national security tabled a resolution in the Senate for the renewal of that act for another year, and the resolution is to be debated next Friday. That act contains a provision which states that a person arrested or detained in police operations is to be taken before a justice of the peace, who is given the power to order that the person be remanded for up to 72 hours. This is inconsistent with, and expressly supersedes, Section 22 of the Bail Act 2003, which imposes a 24-hour limit by which a detained person who has not been charged with any offence must be brought before a resident magistrate or justice of the peace so that his or her release or continued detention may be considered.

In the Nation and Wright case, Mr Justice Brooks made the point that sections 3(2) and 22 of the Bail Act 2003 "define, or perhaps more accurately, refine, 'without delay', as used in Section 15(3) of the Constitution, to mean 'within 24 hours'". In this context, it is unfortunate that the new attorney general does not sit in Parliament, where he could advise members (and face questions on that advice) as to whether or not, in light of the Nation and Wright case, he considers that the Constabulary Force (Interim Provisions for Arrest and Detention) Act 2010 is compatible with the Constitution, and Section 14(3) of the new Charter of Rights, in particular.

Attorney General must answer

Nonetheless, prior to the debate next Friday, the attorney general ought to provide his written legal opinion to the president of the Senate on this matter, so that it can be shared with and considered by the members of the Senate, in the event that the Government decides to proceed with the resolution to extend the life of that act.

Interestingly, whereas Section 15(3) in the old Chapter III of the Constitution, which was considered and applied in the Nation and Wright case, required a person who is arrested or detained to be brought before a court "without delay", Section 14(3) in the new Charter of Rights requires the person to be brought "forthwith, or as soon as is reasonably practicable, before an officer authorised by law, or the court" so that the question of release or continued detention may be considered.

It would be ironic, and most unfortunate, were the new Charter of Rights, which has been heralded as providing greater protection for human and civil rights in Jamaica, to be interpreted in a manner which effectively curtails the rights of Jamaicans in comparison with its predecessor, Chapter III. Such a position would not be in keeping with the established principle that these constitutional provisions are to be interpreted with greater generosity than other types of legislation.

I, therefore, look forward to hearing the views of the new attorney general on this matter.

Senator Mark Golding is opposition spokesman on justice. Email feedback to columns@gleanerjm.com.