EDITORIAL - Time for new dialogue on controversial crime bills

It is coincidental, but the timing of the High Court's striking down, as unconstitutional, of last year's interim amendment to the Bail Act was entirely propitious.

That law, like legislation giving additional powers to the police to detain persons during curfews and cordons, which is now before Parliament for extension, was about to expire after its one-year life.

The ruling by Justices Horace Marsh, Patrick Brooks and Leighton Pusey, therefore, provides lawmakers with an opportunity for deeper reflection before proceeding with the extension of any of the so-called crime bills that are still before the legislature.

Or, more important, the ruling allows a launching pad for a more sober discourse on the requirements for fighting crime, in an atmosphere that is less charged - the bills were tabled at a period of rocketing crime and passed in the aftermath of the offensive by elements in Tivoli Gardens against the security forces - than what existed in Jamaica a year ago when these bits of legislation were approved.

Commendations

In that regard, this newspaper commends the two persons, Adrian Nation and Kerreen Wright, who brought the challenge, through their lawyers, Norman Godfrey and Marcus Greenwood, for articulating claims that their rights were abrogated when they were arrested last year. Activism of this kind drives our institutions to abide by the law, thus underpinning our democracy.

The specific law that the court held to be unconstitutional is the one that allowed persons arrested for murder, gun- and narcotics-related crimes to be held for up to 60 days without bail, with the right to habeas corpus kicking in only after seven days. After that, such detained persons would be brought to court for reviews every 14 days, with the arrested persons having to show reasons why they should be bailed. The amendment also allowed the State to appeal a bail offer by a magistrate.

Inhumane

The court ruled that the amendments were inhumane and impinged on the citizens' fundamental rights and freedoms under the old Chapter III of the Constitution, which has since been replaced and strengthened by the Charter of Fundamental Rights and Freedom.

Moreover, the justices held that the Parliament had contravened "the principle of separation of powers, especially impinging on the authority of the court to grant bail and administer sentences", even without an amendment to the relevant section of the Constitution, passed with the appropriate qualified majority.

That aspect of the decision is in line with rulings by the Privy Council that struck down the mandatory death penalty for murder and other circumstances where all sentencing discretion of judges is removed.

While this newspaper believes that there are circumstances that call for tough, uncompromising action to protect the State and its citizens from a recalcitrant minority, this must be in a context of respect for the universal principles of human rights and the rights of the individual. If these values collapse, democracy is in peril. That is why, as happened in Nation and Wright, people must be willing to raise challenges in the institutions that are the bedrock of our democracy.

Our suggestion to the administration is that all the crime bills with similar provisions as the one which the court has ruled should be allowed to lapse, or be withdrawn, and for a full engagement of stakeholders on whether, or how, they should be replaced.

The opinions on this page, except for the above, do not necessarily reflect the views of The Gleaner. To respond to a Gleaner editorial, email us: editor@gleanerjm.com or fax: 922-6223. Responses should be no longer than 400 words. Not all responses will be published.