Amendment of 60-day bail act long overdue

Michael Gonzales, GUEST COLUMNIST

The recent Supreme Court decision that the amended Bail Act was unconstitutional is an important one for Jamaica's jurisprudence. Admittedly, the 60-day waiting period for bail was the single-most contentious issue in the Government's six crime bills and the one which left itself open to major constitutional and judicial scrutiny. The fact is that the Bail (Amendment) Act was flawed on two counts. First, the issue of bail should be the sole purview of the courts and not legislators; and second, the act flies in the face of the provision of Sections 13-26 of the Jamaican Constitution, which outlines the fundamental rights and freedoms of citizens.

On the first count, there is precedent on the issue, as it was examined by the Privy Council in The State v Khoyratty (Mauritius) on appeal from the Supreme Court of Mauritius. In Khoyratty, it was held that the granting or withholding of bail was a judicial power and duty and should not be legislated. This was also the decision of the Mauritius Supreme Court in Nordally v Attorney General, where it was held that "it was not in accord with the letter or spirit of the Constitution, as it then stood, to legislate (bail) so as to enable the executive to overstep or bypass the judiciary".

The supremacy of the judiciary in matters relating to bail is also underscored in Dlamini v The State, where the South African Supreme Court aptly noted that "what is of importance is that the grant or refusal of bail is under judicial control, and judicial officers have the ultimate decision as to whether or not, in the circumstances of a particular case, bail should be granted." This was also the position in A v Secretary of State for the Home Department, when Lord Bingham, in his leading judgment, trumpeted the separation-of-powers doctrine, noting that the legislature should not interfere with decisions which are the domain of the judiciary. He stated that: "Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself." It is submitted that the Bail (Amendment) Act, in the stipulation of the 60-day provision for bail, clearly breached the doctrine of the separation of powers by wading into the domain of the judiciary.

Additionally, the new legislation contravened well-settled positions on the rule of law and the separation of powers. While the sovereignty of Parliament and the supremacy of the common law are prominent features of the Westminster model of government, this is balanced with another key element - the impartiality of the courts free from governmental interference. The bail legislation was arguably in direct contravention to the well-established Diceyan principle advocating the protection of the fundamental human rights of citizens.

One of the hallmarks of the rule of law is the separation-of-powers doctrine, and as Lord Templeman noted in Re M: "Parliament makes the law, the executive carries the law into effect, and the judiciary enforces the law." Additionally, as Baron de Montesquieu noted in his Spirit of the Laws, "There can be no liberty ... if the same man were to enact laws, execute public affairs, and try crimes or individual cases."

All the democracies in the Commonwealth Caribbean possess a written Constitution which is not only recognised as the supreme law but, importantly, embraces the doctrine of separation of powers. According to Rose Marie Antoine, "The Caribbean courts have affirmed, without reservation, that a constitution provides that judges are independent, impartial and separate from political interference and from the political arm of government, so as to administer justice impartially ... . Further, the judiciary and the courts have a monopoly and exercise of the judicial function."

Even if the Bail (Amendment) Act of 2010 miraculously escaped the scrutiny of the separation-of-powers doctrine, it always faced a tougher examination when mirrored against the provisions of the Jamaican Constitution.

Government legislators had argued that the provisions of the crime bill stipulating the 60-day period for bail were to continue in force for only a period of one year. Does this mean that the constitutional provisions for fundamental rights and freedoms should have been suspended for a year?

Constitutional Microscope

The Amended Bail Act, with the 60-day stipulation, contravened several sections of the Jamaican Constitution. First, Section 15 (2) states: Any person who is arrested or detained shall be informed as soon as reasonably practicable, in a language which he understands, of the reasons for his arrest or detention. The 60-day stipulation was not in keeping with the spirit of this provision.

Section 15 (3) (b) states: Any person who is arrested or detained upon reasonable suspicion of his having committed or being about to commit a criminal offence, and who is not released, shall be brought without delay before a court; and if any person arrested or detained upon reasonable suspicion of his having committed or being about to commit a criminal offence is not tried within a reasonable time, then, without prejudice to any further proceedings which may be brought against him, he shall be released, either unconditionally or upon reasonable question. It is submitted that the 60-day bail period under the act in question was not in keeping with this provision.

Section 17 (1) states: No person shall be subjected to torture or to inhuman or degrading punishment or other treatment. It is humbly submitted that to keep an accused for a 60-day period away from his family and place of employment is tantamount to degrading punishment and is unconstitutional. Also, Section 20 (1) states: Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law. It is submitted that a 60-day waiting period could not be construed as reasonable time and was, therefore, unconstitutional.

Section 2 states: Subject to the provisions of sections 49 and 50 of this Constitution, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void. The Supreme Court was, therefore, correct in its decision on the unconstitutionality of the Bail (Amendment) Act.

fundamental rights and freedoms

Another valid observation is that in Khoyratty, the Privy Council also held that the move to legislate bail conditions was a breach of the fundamental rights and freedoms of citizens of Mauritius. It is also important to note that the sections of the Mauritius Constitution on fundamental rights and freedoms bear much similarity to the provisions in Jamaica's Constitution, which makes the Privy Council ruling in Khoyratty of particular relevance.

Lord Steyn highlighted the fact that the new bail legislation was in contravention of Section 5 (3A) of the Mauritius Constitution, which states: "Any person who is arrested or detained for the purpose of bringing him before a court in execution of the order of a court; upon reasonable suspicion of his having committed, or being about to commit a criminal offence; or upon reasonable suspicion of his being likely to commit breaches of the peace, and who is not released, shall be afforded reasonable facilities to consult a legal representative of his own choice and shall be brought without undue delay before a court."

This provision is similar to Section 15 (3) (b) of the Jamaican Constitution. The Privy Council stated that the new legislation on bail by the Mauritius Government was in breach of Section 7(1) of the Constitution, which provides that: "No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment." This is similar to Section 17 (1) of the Jamaican Constitution.

It was against this background that Lord Steyn emphatically stated: "By its clear intendment, it (the Constitution) militates against a right to bail, qualified as it is, being abolished by ordinary legislation or by a constitutional provision which does not comply with the requirement of deep entrenchment & and that failure to comply rendered the (Bail) Act void".

The concern over the constitutionality of the 60-day bail provision was raised repeatedly by several legal and human rights interests who appeared before the Joint Select Committee of Parliament which deliberated on the crime bills. In its report submitted in December 2008, the committee noted that: "Arguments were made that the removal of the eligibility for bail for a period of 60 days was unconstitutional." It's a pity that these arguments were not heeded.

Michael Gonzales is a journalist and communications consultant. Email feedback to columns@gleanerjm.com and jmgcomm@hotmail.com.