Politicians should stay out of judicial matters – attorneys
Published:Wednesday | May 25, 2016 | 12:00 AMAnastasia Cunningham
Calling it a dangerous move for politicians to interfere in judicial matters, at least two attorneys are advising Prime Minister Andrew Holness to stay out and allow persons trained in the law to carry out their duties, especially as it relates to the planned amendment to the Bail Act.
On Tuesday, during his contribution to the Budget Debate in Gordon House, Holness outlined a number of measures that the Government intends to implement to address the problem of crime and violence in Jamaica. One such measure is a proposed amendment to the Bail Act "such that persons charged with murder will be ineligible for bail under certain circumstances", Holness said.
Currently, anyone charged with any offence has a constitutional right to bail. However, it is left to the judge's discretion to make that determination.
"It is most unfortunate that the prime minister, who himself is not an attorney, should take on the responsibility of replacing the discretion of judges, who are trained in the law, with his instinct or belief that politicians should set standards for bail," attorney-at-law Linton Gordon told The Gleaner.
"The Bail Act, which is a fairly new bit of legislation, provides a fundamental principle, and it is that the right to bail is a constitutional right, which must be respected and must be honoured."
Linton suggested that Holness go through the 2012 Court of Appeal case, Huey Gowdie, which he said set out a very detailed set of principles and guidelines that should govern the approach the court should take in granting bail.
"All the principles in this case were reviewed, analysed, and assessed by the court, so I don't think that any knee-jerk reaction to the crime situation is a solution, and in particular, I do not think that politicians should interfere with processes, procedures, and guidelines that have been set out clearly and easily to follow. Leave it to the discretion of the court, which is better able to assess each person appearing before them and to determine whether the person should be admitted to bail," he said.
VIOLATING PEOPLE'S RIGHTS
Attorney-at-law Peter Champagnie said that while he applauded some of the measures the prime minister announced to deal with crime, he could not support the idea of persons not being eligible for bail because of the category of offence.
"It appears that they are proposing to take away the discretion of the judges completely, and it would violate the charter of rights in our constitution, Section 13 to be exact, which guarantees every citizen their right to liberty. This is a very dangerous move," said Champagnie, who is chairperson of the Criminal Law Practice and Procedure Committee of the Bar Association of Jamaica.
"Every time there is a spike in the crime rate, there is this knee-jerk reaction from the powers that be to implement legislation that does not work. The solution is to give the police and the State greater resources to fight crime. If someone considering committing a criminal offence recognises at the outset that the likelihood of being caught is a real possibility, then that in and of itself would be a major deterrent, but not allowing certain persons to get bail is not the solution."
He continued: "I am awaiting the legislation to see what it will be like, but I am very worried with this development. It is a very dangerous path when Parliament seeks to take away completely the discretion of the judge or the judiciary in presiding over matters as it relates to the determination of bail because it does harm to the principle of separation of powers that the judiciary should be independent of the other arms of the State."
Attorney General Marlene Malahoo Forte and Minister of National Security Robert Montague are to provide further details when they make their presentations to the Sectoral Debate.