Sat | Oct 19, 2019

Frank Phipps | Wanted: a national hero on crime

Published:Sunday | October 6, 2019 | 12:31 AM
Frank Phipps

This is a public notice inviting applications from suitably qualified persons to deal with crime. Politicians from Parliament, present and past, need not apply – and not because they prequalify for the Order of National Hero. To the contrary, it is out of caution to prevent them from elevating one of their own to the exalted status of national hero, as was done to create the lofty title of ‘Most Honourable’ to be bestowed only on one coming from among themselves.

A cynic would expect the new national hero to withdraw from independence and return to the ‘good-old-days’ when Jamaica executed murderers rather than allowing for violent crimes to continue with general disorder as the culture of the nation. Said cynic, for the same reason, would also expect the new hero to abolish ministries for self-government and reintroduce the cat-o-nine for leaders who corruptly function in their own pecuniary interest, regardless of the accepted standards for leading a new generation.

FUNDAMENTAL RIGHTS & FREEDOM

Notwithstanding the cynic, for me, the most persistent and insidious obstruction to reconstructing the social and economic life of Jamaica is the reluctance or inability of many of us to recognise, accept and enforce the fundamental rights and freedoms of the others of us. This is to say, after 300 years of colonial exploitation, it has not been possible to free minds from the subjugation and dependency of colonial rule by 57 years of independence, governing ourselves in harmony and with mutual respect. For this, I point a finger directly at the legal profession from where judges are drawn and many legislators elected.

Jamaica has done well so far, considering the social and economic burdens carried over into independence, but great caution is advised going forward when we are repeating the same mistake over and over, expecting a different result to combat crime.

It is saddening to hear the minister of national security bemoaning the failure of social intervention in Montego Bay, introduced as an answer to crime with a state of public emergency in the entire parish as the last resort to get the gunman and reduce murder. That response to crime is replicated at various hotspots in the island like a whirlwind for clearance with unquantified benefits for the rights and freedoms of both victim and offender, and the best interest of the community involved.

A policy to hold and punish offenders has never worked from the days of slavery. What is needed is a plan to investigate and rehabilitate. Neither the Jamaica Constabulary Force nor the Jamaica Defence Force is structured to deal with crime in that way. Neither are the courts or the prisons.

To jump backward into the future, if my memory serves me right, it was the lawyers who pushed for a Bail Act when judges were not seen to be acting as the guardians of the fundamental rights and freedoms of the individual.

How can a government in a free and democratic country entertain an application to amend the Bail Act to allow for longer periods in custody for persons arrested or detained but not charged for an offence, especially when there was no need for a Bail Act when there was always the constitutional right to be taken before a court without delay if not released? Bail should only arise after a person has been charged for an offence and is to be taken to court for a trial.

CHARTER OF RIGHTS

Individual freedom is an inherent human right and the Charter of Rights provides, at Article 14, that no person shall be deprived of his liberty except on reasonable grounds and in accordance with fair procedures established by law. There are good judges and others to enforce the right to liberty for every person in Jamaica. This calls for liberated minds, as judges, to determine the reasonable grounds for depriving a person of his liberty and standard of proof for reasonable grounds. There is an obligation on the legal profession to monitor and plead for the observance of these rights without having to awaken the parliamentary Opposition from their slumber to pass a law.

Moving one rung lower on the ladder of justice is the thought of allowing the prosecution the right of appeal from an acquittal of a criminal charge, along with the proposal for trial by judge alone for some serious charges. This is after a reduction of jurors from 12 and the removal of unanimous verdicts for a murder conviction. Somewhere, someone lacks confidence in either the system or their own ability in administering the system for a fair trial with a just result, without abrogating traditional rights for persons presumed to be innocent.

This is going back to the past where none shall escape the long arm of the enforcer for selective justice.

- Frank Phipps, QC, is an attorney-at-law. Email feedback to columns@gleanerjm.com.