The Gavel: Uneasy with high seas waiver - Why not take it to local court?
The controversial Maritime Drug Trafficking (Suppression) (Amendment) Bill 2015, now having been passed in the Senate last Friday, without the support of the Opposition, is heading back to the Lower House for the Senate's amendments to be considered.
Fierce opposition in the Senate had forced Justice Minister Mark Golding to put the debate on hold, and on Friday, he returned with a set of amendments which outlined a scheme which shall guide the security minister whenever he seeks to exercise his discretion to waive Jamaica's jurisdiction over a national found on the high seas - outside Jamaica's territorial waters - on a vessel with drugs or guns.
Those who oppose the proposed law have argued that the Jamaican in that situation is entitled to due process of law, and has a right to trial in Jamaica. This, however, is where the rubber hits the road. A fundamental question must be answered clearly: Is a Jamaican, who has been arrested on the high seas on suspicion of drug and/or gunrunning entitled to a trial, under the Constitution, in Jamaica?
It appears, from Golding's arguments, that the policy that gave rise to the drafting of the amendment is built on the premises that a Jamaican found on the high seas has no right to trial in Jamaica.
"There is no right that is being waived on the part of the individual involved. It is the state who has the right to prosecute the individual in Jamaica. It is not the individual's right to be prosecuted in Jamaica and so I think the whole thing is predicated on a false assumption and a false premise," Golding said.
Perhaps, it would be in good order for the Parliament, by way of a petition, or by some other means, to ask the court for a declaration on whether a Jamaican found on the high seas has no right to trial in Jamaica.
Courts are often asked to rule on such fundamental jurisprudential principles and the interplay between domestic law and international treaty obligations.
Arthur Williams, a seasoned senator and attorney, was empathetic Friday when he said "it is the citizens' rights that we are taking away".
His suggestion for the attorney-general's advice to the national security minister is to be shared with a lawyer representing the detained man, and for it to be subjected to judicial challenge, was dismissed by Golding.
"It is the citizen's right that we are taking away to be tried in this country, and if he is to be sent off to be tried elsewhere, at least give him an opportunity to challenge that decision," Williams said.
The bill proposes to grant the minister of national security the power to waive Jamaica's right to exercise jurisdiction over Jamaican nationals who are detained on a Jamaican vessel by the law-enforcement authorities of a treaty state seaward of any state's territorial sea.
Jamaica is a party to the 1988 UN Convention against Illicit Traffic in Narcotics Drugs and Psychotropic Substances. Under this convention, state parties are required to cooperate through bilateral or multilateral arrangements enhancing the effectiveness of suppressing illicit maritime trafficking in drugs, and to enact the necessary legislative and administrative measures to achieve same.
Jurisdiction is conferred to the territory which has flagged the vessel. But by treaty arrangements, there can be surrender of jurisdiction to the country whose law-enforcement officers apprehended the vessels.
The national security minister currently has the power to waive jurisdiction over a Jamaican-flagged vessel and its content found on the high seas by agents of a treaty state - the United States and Britain - if he finds it to be transporting contraband such as illegal guns and drugs.
If there are Jamaicans aboard, they would be brought back here for trial, but the bill is proposing that the signature of the national security minister be sufficient to decide whether he is sent to face justice in a foreign land.
With the amendments to the bill that was brought on Friday the minister of national security shall not waive Jamaica's right to exercise jurisdiction and authorise the relevant treaty state to enforce its laws against the person if the attorney-general advises the Minister that the relevant treaty state is not likely to give the person a fair trial or it is likely that the person will be punished, detained or restricted in his personal liberty by reason of his race, place of origin, social class, colour, religion or political opinion.
The other considerations are that the waiver and authorisation would contravene the provisions of the Constitution or other law in relation to the person; or there is no impediment (whether legal, evidentiary or otherwise) to the effective prosecution of the person if he were to stand trial in Jamaica.
The minister is required to seek the advice from the attorney general on four specific issues.
"If the advice of the attorney general is that any of those four things will be breached, he cannot waive jurisdiction. If the advice of the attorney general is that none of those four things would be breached, the minister then has a decision to make," Golding said.
The fact that the Government has returned to Parliament with a scheme outlining how the minister should exercise his authority is commendable. But there has to be an additional step. We should not wait until the minister is given such awesome powers, akin to an extradition, before we are satisfied he is on sound legal ground. The court should be asked to make a declaration on whether the scheme is likely to breach the constitutional rights of a Jamaican.