Last-minute letter to the Senate

By Bert Samuels, Guest Columnist

Parliament has a constitutional mandate, under Section 49, to make "laws for the peace, order and good government of Jamaica". All laws must be "subject to the provisions of the Constitution". The Constitution - and not our Parliament - is supreme.

The Law Reform (Fraudulent Transactions) (Special Provisions) Act, 2013 is currently before you for debate. The scamming of innocent foreigners is, admittedly, pervasive. However, laws must never offend our Constitution or settled legal principles.

Offenders under this act are tried without jury. Serious offences ought to be tried by our peers. This bill creates serious offences, punishable by 15 to 25 years.

Where a person "knows or has reasonable grounds to believe" that a transaction is related to an unlawful activity under the bill (Section 6(1)), he can be sentenced to 15 years, the same time for robbery with an illegal firearm.

Where a person, by false pretence, obtains money, he can be sentenced to 20 years, one year less than the maximum for burglary including a felony! That burglar is tried by a jury. For 20lb of cocaine, the sentence is five years. Why this high sentence on 'scamming', which is totally out of line with other more destructive offences?

The collective wisdom of a jury is far superior to that of any single judge. For these serious offences, we ought to have jury trials.

Section 14(1) of the bill requires that a person should satisfactorily account for property that he owns. This conflicts with Section 16(5) of the Charter of Rights, which provides that "every person charged with a criminal offence shall be presumed innocent until he is proved guilty or has pleaded guilty". Under the Constitution, there is no duty to prove anything whatsoever. How, then, is a defendant being called upon under the act to "satisfactorily account"?

Section 14 is not saved by the repealed Section 50(1) of our Constitution, (repealed with the coming into being of The Charter of Rights). Before this, Section 14 of the bill would have been saved from being unconstitutional, even where it was inconsistent with our fundamental rights.

Clause 11(1)(a), as amended, is too wide.

This amended clause under the bill makes it an offence for a person to use the telephone "with a view to obtaining a benefit for himself or any other person".

A person making a telephone call to harass a member of the opposite sex for sexual favours would be guilty of a "benefit" under this law, with a maximum of 20 years' imprisonment!

Section 15(2)(b) gives too wide powers to constables.

Under this provision, the constable can seize the property of a citizen where he believes, or has reasonable grounds to believe, that it relates to an offence under the act.

A resident of the city of Montego Bay retained me last year when police carried out a search of his business place, taking away his flat-screen television and his 11-year-old BMW motor car, alleging that they were bought with the proceeds of scamming. After one year's detention, the items were eventually returned in a deteriorated state, with the gentleman incurring legal costs.

Unlawful activity

Section 6 defines "unlawful activity" to include unlawful activity as defined by a foreign state. This unprecedented import of foreign laws into our jurisdiction is unwelcome and untenable.

Section 6 of the bill puts real estate agents, car salesmen, insurance brokers, landlords, lawyers, and financial institutions at risk of facing 15 years' imprisonment. What was hitherto before a legitimate transaction, now if the monies used were sourced from some unlawful activity, you could be dragged before the court. This law is aimed at 'net-fishing', rather than 'spearfishing' for the true criminals. I'm in total support of scammers being pursued and brought to book in a fair trial.

Attorneys operate under the principles of lawyer-client privilege. Lawyers cannot second-guess their clients' instructions. We can be reported to the General Legal Council by our clients for divulging confidential information. Under the new act, I am now caught between carrying out quasi-police interrogation of him as to his source of income - shaking his trust in me - and acting at the same time as his lawyer. If I do this, I am doomed. If I don't, I am a scammer and liable to 15 years' imprisonment.

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