Sun | Sep 24, 2017

Editorial | Mrs Malahoo Forte’s new portfolio

Published:Thursday | July 7, 2016 | 7:00 AM

Under section 79 of Jamaica's constitution, which allows for the appointment of the attorney general post in the Holness administration, occupied by Marlene Malahoo Forte, the job is defined as being the "principal legal adviser to the Government of Jamaica".

As a member of the House of Representatives, Mrs Malahoo Forte might have also been appointed a minister of government, as has been the case with several previous attorneys general. In this case, Prime Minister Andrew Holness chose not so to do. Further, section 77 (1) of the constitution provides for the governor general, acting on the advice of the prime minister, to outline in writing to a minister "the responsibility for any subject or any department of government" to which he or she is assigned.

Indeed, while it is the Cabinet, as set out in section 69 (2) of the Constitution, that "shall be the principal instrument of policy" and is charged with "the general direction and control" of the government, it is the individual ministers who give effect to specific policies relating to their portfolios. Insofar as this newspaper is aware, and as we noted, Mrs Malahoo Forte, while she may attend Cabinet, has no ministerial post. Her job is to advise the government on the legal matters with which it is faced, and once bills are developed, on their legal efficacy.

It is against this background that we are extremely surprised that it was Mrs Malahoo Forte, without reference to either the justice minister, Delroy Chuck, or his national security minister, Robert Montague, who declared the government's intention to bring a string of legislation to Parliament to fight crime, which, she warned, could mean that some of the "fundamental rights and freedoms guaranteed to Jamaicans may have to be abrogated, abridged, or infringed".

Moreover, it was she, rather than Mr Chuck or Mr Montague, who has been discussing these proposals with Chief Justice Zaila McCalla in her administrative role as head of the judiciary as well as the private bar.

 

DEALING WITH THE PROBLEM

 

Perhaps it is that Mrs Malahoo Forte has acted with the imprimatur of Prime Minister Holness, but the spectre of impingement on constitutional rights and freedoms she raised to be articulated, promoted, and pursued beyond whose portfolio remit they fall and who, ultimately, will not be ministerially responsible for them.

Further, while the Constitution, at section 13 (2), allows for legislatives abridgement of fundamental freedoms where such laws are "demonstrably justified in a free and democratic society", it ought to be the primary position of an attorney general to prevent the government passing laws that impinge on the constitution and on guaranteed rights and freedoms. Like most sensible people, we accept that we face a crisis of violent criminality, but Mrs Malahoo Forte, in her declaration of legislative policy, neither presented nor argued a cogent case that existing laws and legal mechanisms were inadequate for dealing with the problem.

She implied that the government plans to toughen the laws governing bail, the use of juries, evidence, plea bargaining, and firearms, among others. We await the specific amendments before making a judgement on these. We recall that the Suppression of Crime Act of the 1970s, which gave the police wide powers of search and arrest, did not enhance the efficacy of the constabulary, but, rather, entrenched a paramilitary. Nor did the unconstitutional law that provides mandatory life sentences for gun crimes lessen gun offences.