Tue | Aug 22, 2017

The Gavel: Portia to ride on feel-good bills

Published:Monday | February 1, 2016 | 2:00 AM
Simpson Miller
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With general election in the air, the feel-good bills just keep flowing into the nation's legislature and they could influence voter turnout, particularly among women, on election day.

Three of those bills have been tabled by Prime Minister Portia Simpson Miller, who is the minister of gender affairs. They are the Sexual Harassment bill, An Act to amend the Child Care and Protection Act, and An Act to amend the Criminal Justice (Administration) Act.

The Government is proposing to amend the Child Care and Protection Act to allow for the imprisonment of parents, for up to five years, if their child or children are neglected and found unsupervised on the streets at night.

"A parent or guardian of any child, where the child is found in any circumstances from which it can reasonably be concluded that the child has not been given adequate parental care and attention, for example, where the child is found (i) unsupervised on a street or other public place late at night; or (ii) living with a male or female adult, in circumstances which expose the child to risk of sexual, or other, abuse", faces up to three years' imprisonment if convicted in a resident magistrate's court and five years if convicted in a circuit court.

 

MOST EGREGIOUS

 

I am most uncomfortable that the "unsupervised on a street or other public place late at night" is being lumped with 'putting out your child to live with man'. The latter is most egregious, and is often condoned or done with the blessings of one or both parents. However, the former may not be as a result of poor parenting. There are some children who are determined they won't conform to any rules, and try as a parent may, they will take to the streets.

The "unsupervised on a street or other public place late at night" provision is also open to abuse by corrupt members of the security forces who will seek to arrest parents and put children in the care of the State simply because minors may have abused permission to go to a party or a movie, and are left stranded on the streets, late at nights, without adult supervision.

It is well known that Simpson Miller's advocacy for the protection of children has been consistent. Her admiration for children is perhaps unmatched by any public figure, and her condemnation when harm is brought upon minors is vigorous if not vitriolic. So it comes as no surprise that she has made good on her promise to have the laws amended to ensure the 'demons' who are eating away at the souls of children be put in prison for a long time.

The amendments to the Criminal Justice (Administration) Act propose among other things, that where a sentence of life imprisonment has been imposed for an offence committed against a person under the age of 18, the minimum period which a person shall serve before becoming eligible for parole shall be increased by 10 years. Where a life sentence has not been imposed, the court will be required to impose an additional 10 years to the sentence that is now permitted in law. The additional 10 years do not apply if the convicted person was under the age of 18 when the offence was committed.

 

ARE LAWS DRIVEN BY DATA?

 

One wonders what it is that motivated the Simpson Miller-Cabinet to go in this direction. In the absence of evidence to the contrary, I am minded to believe that it is plain, old populism which is fuelled by a bloodthirsty society for stringent, harsher penalties to be meted out to child molesters, rapists and murderers. Don't get me wrong. I am not suggesting that we go soft on these maggots and scums. I am just hoping that the days of making laws by the gut are behind us and we are being data driven. For example, is it that the research is showing that those persons who bugger children are not getting anywhere near the maximum 10 years and that the likelihood of reoffending is high, hence the reason for the additional 10 years? What is the pattern regarding sentencing and reoffending where an adult is the victim?

It seems to be that Cabinet, by way of the amendments proposed to the Criminal Justice (Administration) Act, is seeking to bring mandatory minimum sentences through the back door. Mandatory minimum sentences are repugnant to the Constitution as all accused persons have the basic human right to be treated in a manner that is humane, fair, non-discriminatory and in keeping with the fundamental right and freedom enshrined in Chapter Three of the Constitution. To deny an accused an opportunity to persuade the court that 15 years would be disproportionate to the particular circumstances of his case, is a denial of his basic human right and is unconstitutional. The question as to whether the additional sentences being considered are grossly disproportionate to the offence committed must now be seriously raised.

There is also the question of how the new sentences will impact the operations of the Criminal Justice (Plea Negotiations and Agreement) Amendment law with the kinds of sentences being proposed under Simpson Miller's new bills. It would seem to me that the additional 10 years will, in fact, impose sentencing restrictions on judges, thus making it run counter to the plea-bargaining regime.

Maybe, just maybe, the contents of the bill are not as important as the timing of them being laid in Parliament. They are brought at a time when the nation is preparing to go to the polls, and Simpson Miller will grab all the headlines in Parliament when she leads the debate on them. Gender affairs and the protection of children are the prime minister's strong talking point, and with 51 per cent of the population being women, these bills could become another coach on the Portia train back to Jamaica House.

daraine.luton@gleanerjm.com