Sun | Apr 22, 2018

Bert Samuels | First 100 Days - Right the balance of justice

Published:Wednesday | June 8, 2016 | 12:00 AM
Bert Samuels
Delroy Chuck, minister of justice.

If the Andrew Holness administration is to convince the ordinary man on the street that it is committed to justice, it must commit to break the parliamentary tradition of passing laws only in favour of the prosecution in the past 15 years.

A defendant on trial for murder can now be tried with fewer jurors, and can now be convicted and sentenced to multiple decades in prison without a unanimous verdict. All this has been done to make it easier for the prosecution to secure a verdict in its favour. What piece of legislation has been fashioned in recent times to improve the rights of a defendant in a criminal trial?

To strike the necessary balance, this new administration must embark on a deliberate path to bolster the rights of a defendant who faces the all-powerful State apparatus. It has always baffled me that Parliament has in its ranks so many lawyers who have practised in the criminal courts, yet its legislative agenda excludes laws to benefit the defendant.

The prosecution, unlike the defence, can challenge a decision in favour of bail all the way up to the Court of Appeal. As the law stands, a High Court judge's denial of bail is not challengeable in the Court of Appeal. This new administration seems not to have learned from the striking down of the 2010 amendments to the Bail Act, collectively called the 'anti-crime bills', amending the Bail Act of 2000. These bills restricted the court's discretion to grant bail.

Unfortunately, the Holness administration has already signalled that they will be tinkering with the right to liberty, enshrined in the Charter of Rights, again. I call upon the minister of justice, a trained constitutional lawyer, to advise his prime minister that the Charter of Rights and the Bail Act give the right to bail to all defendants, including those charged for the most heinous crimes. There are no rights protecting the victims of murder in the charter or the Bail Act. The victims are 'protected' only after there is a fair trial leading to a conviction. He should also be advised that no law or pronouncement by the head of state can take away the right to the presumption of innocence of all persons charged.

The Government has made an attractive argument for the amendment to Section 64 (2) of the Constitution, which sets out the maximum period a government can remain in power. It provides, without limit, that its five-year life can be "sooner dissolved". It is this freedom (to sooner dissolve) which the prime minister now enjoys that PM Holness wants to limit. He has argued that this power can be manipulated to hold an election so that tight fiscal measures to be taken can be delayed, to ensure victory at the polls. This, he argues, must stop, as "elections can no longer be allowed to supersede the fiscal cycle".




Holness will definitely have a problem in seeking to have fixed elections become part of the law in Jamaica. He will need to have a two-thirds majority in the Parliament. This he must secure before he can move on to the constitutionally required referendum to have a repeal of the relevant provisions of the Constitution (Section 64 (4) (a)), which guarantees a maximum term of five years, without setting out a specific date for general elections.

From what I have heard, the PNP wants to marry support for this move to the Government's making a change and supporting the CCJ as the final Court of Appeal. The JLP wants a local Jamaican final Court of Appeal to replace the Privy Council. PM Holness, with his one-seat majority, will not achieve fixed-date elections unless he yields on the CCJ issue. Hamstrung by his razor-slim majority in the House, he will be forced to prioritise on the fixed-date election matter, failing which, this proposed amendment will be left to gather dust.

The arguments in favour of a regional final appellate court are, in my view, attractive enough for Holness to have another look at accepting them. He will be well advised to go down in history as the great statesman, by giving in on the CCJ issue in order to achieve the benefits to nation-building he so eloquently argues that fixed-date elections can achieve.

The issues of bail, fixed-date elections, and the CCJ, are inextricably linked to justice for Jamaicans who narrowly voted in this new Government. The Government will gain great political advantage should it make the right decisions on these issues.

- Bert Samuels is an attorney-at-law. Email feedback to and