Bert Samuels | Trampling on our rights

In the 1962 Constitution of Jamaica (Chapter V, Part 2, Section 48), under the heading ‘Powers and Procedures of Parliament’, there is a provision which reads, in part, that “... Parliament may make laws for the peace, order and good government of Jamaica”. This ideal is reinforced by the 2011 amendment to the Constitution, which witnessed the replacement of the previous Chapter III with the new Charter of Rights.

This charter, defined as a written grant of rights, made it clear that Parliament and the other organs of the State, in carrying out their functions, have a duty to, in so doing, guarantee ‘peace, order and good government’ to Jamaicans, and are compelled not to trample on our rights.

In short, the State must avoid limiting, curtailing, or reducing our rights in any way, unless the action taken is demonstrated to be justified. That justification must be fully explained to the people, and proved to be required in our free and democratic society.

In recent times, states of emergency, NIDS, ZOSO, the right of appeal by the State following the acquittal of a citizen, and last, an assault upon the concept of trial by our peers, have all been imposed, or threatened to be imposed, on our people.

THE ‘CAN ONLY READ AND WRITE’ CATEGORY

One of the arguments used against trial by literate persons on the voters’ list, is that they are not as capable as lawyers (all judges are, first and foremost, lawyers) to preside over the facts presented in a criminal trial. My housekeeper, who fits into the ‘can only read and write’ category, is better equipped to assist me in understanding and interpreting the facts presented in my cases than my children, all of whom have two degrees!

Quite frankly, I detest any attempt to treat as ‘less than’ the so-called ordinary Jamaican in deliberating on human experience, which is required in 99 per cent of criminal cases. Let us remember that the judge in all criminal cases must decide whether the law has been satisfied, before he gives the case to the laymen jurors to decide on. He can, and should, take the case from the jurors, where the law is not satisfied or the witnesses are shown to be manifestly unreliable.

Why are we now seeking to attack the synergy between the judge, who is supreme on the law, and the collective wisdom of seven jurors, when they both combine to maintain a high quality of justice for both the accused and the victims of crime?

We, in our wisdom, choose jurors from the list of registered voters. The right of an accused to be tried from a list which is constitutionally protected (S 13 (3) (m)) is, by extension, being tried under the protection of that very Constitution. There is an interconnection between the right to choose a government, and the right to be tried by potential voters. It is, interestingly, these very voters who choose a government, which in turn chooses a prime minister, who, thereafter, chooses the chief justice of Jamaica. It’s those ‘can only read and write’ voters whose elected official goes on to choose the head of our judiciary.

REMEMBER OUR HISTORY

No one should ever seek, in the language of the people, to ‘diss them’. As Shakespeare says of he who comes from humble beginnings, climbs the ladder of life, and then turns his back on his past, that he “looks in the clouds, scorning the base degrees by which he did ascend”.

May I say a word to our wise men and women who deliberate at Gordon House, that they should remember our history, in that George William Gordon – after which their chamber is named – suffered death because he was not tried by a jury, but rather by a few men hand-picked by Governor Eyre. I ask that we protect the right of all of us to trial by jury, so that the Honourable Gordon may rest in peace.

All the laws passed by our Parliament regarding serious crimes in the last five decades are tried by a judge alone. So, gun crimes, scamming laws, and anti-gang laws are all tried without jurors.

I guess I could rush to judgement, as is now so often the case, and conclude that our spiralling crime rate is as a result of trial by judges!

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