Court fights loom on pre-charge bail clause, says Paulwell

The controversial pre-charge clause in the proposed Bail Act 2022 will be doomed to face fierce court challenges on its constitutionality, a senior oppposition member of a parliamentary review committee has warned.

“We have listened carefully to what the presenters have said, and we fear that this bill, and in particular Clause 5, is going to be subject to such ferocious challenges that we are not sure if it is worth the while to go through that,” Phillip Paulwell said during Wednesday’s examination of the bill by a joint select committee.

He said that the Opposition will deliberate on the pre-charge bail provision and return with a final position on the matter.

In earlier submissions, the Norman Manley Law School, Jamaicans For Justice (JFJ), and the Jamaican Bar Association (JAMBAR) were among some institutions and individuals that raised concerns about the constitutionality of the provision.

Chairperson of the committee, Marlene Malahoo Forte, said she “appreciated the constructive approach” being taken by the Opposition in signalling that it needed more time to arrive at a final position on Clause 5.

“We in the Government also had to spend a lot of time going through the provision, and a lot of questions arose before the bill came here. I think it is entirely reasonable that you want to think it through,” she said.

At Wednesday’s committee meeting, Malahoo Forte castigated JFJ for indicating that the pre-charge bail provision was “suggestive that the Government sees the constitutional rights as a mere privilege rather than what the Constitution safeguards”.

JFJ Executive Director Mickel Jackson told the committee that Section 5 should be struck from the proposed law. She said that the board of the human rights lobby felt that the provision was offensive to the Constitution.

Malahoo Forte, who is also the minister of legal and constitutional reform, said that the view expressed by the JFJ was unfortunate.

She argued that under the new constitutional arrangements, rights are not absolutely guaranteed, and “it means that to safeguard the rights, someone has to be responsible”.

“As individuals residing in the country who I am sure are not oblivious or immune to the challenges faced, we have to always be very careful in the message that we send that we do not unwittingly embolden those who are hell-bent on respecting no one’s rights, and through their actions, prevent others from enjoying the rights that are guaranteed.”

The Cabinet minister said she had become increasingly intolerant of those who would “rather maximise the problems instead of focusing on arriving at appropriate solutions”.

However, another committee member, Fitz Jackson, cautioned the chairman about her comments, indicating that her remarks were unreasonable.

The opposition member argued that Malahoo Forte’s comments could serve to dissuade members of the public from participating in critically reviewing legislation and policy.

“To highlight shortfalls in the provision, I think that is in order,” he said.

In a quick response, Malahoo Forte said that her comments were not intended to discourage Jamaicans from making submissions before Parliament.

But Paulwell contended that Jamaicans should be encouraged to express their views on issues of national importance in Parliament.

“... You say that these views might ‘encourage others out there’, and that is where we might just be crossing the line in how we respond to the recommendations from Jamaicans,” Paulwell said.

During earlier submissions, JAMBAR said it could not support the pre-charge bail provision in the new Bail Act before a joint select committee of Parliament for review.

President of JAMBAR, Alexander Williams, told lawmakers that pre-charge bail would impact the constitutional rights of Jamaicans, including their rights to liberty, privacy, and freedom of movement.

And Meridian Kohler, lecturer at the Norman Manley Law School, told the joint select committee that the Bail Act 2022 is likely to be found in violation of Sections 13 and 14 of the Charter of Fundamental Rights and Freedoms.