Parole: not a privilege but a right
Victor Hemmings, GUEST COLUMNIST
The Parole Act of Jamaica 1978 has been in effect for the past 36 years. During this time, aspects of the act have denied prisoners the fundamental right of protection from deprivation of liberty and right to a fair hearing. These rights are guaranteed by the Section 14 (1) (b) and 16(2) of the Constitution, respectively.
According to Section 14 of the Constitution, "No person shall be deprived of his liberty except ... in accordance with fair procedures established by law." However, inmates have virtually been deprived of this procedural right by the parole process, having in the first place qualified to make the application by virtue of the fact that they have served at least one-third of their sentence of more than 12 months. See Section 6 of the act.
The Office of the Public Defender says this because Section 7(5) of the Parole Act gives the Parole Board the power to invite an applicant for parole to be present at his/her hearing, if the board sees it fit to so do. The evidence that we have seen, unfortunately, shows that in the last five years, no inmate has been invited, and the situation becomes even more worrying when it is noted that the board, in its communication, does not inform the citizen of the provisions of Section 7(5) of the act.
We are recommending that the act should be amended to give every applicant to the board the right to be present at his/her hearing, as to do otherwise is a breach of Section 14(1) of the Constitution, which requires that there should be no deprivation of a person's liberty without there having been a fair procedure. The current unconstitutional process is not sustainable, as it is not long before an applicant will be sufficiently convinced to make an application to the Supreme Court seeking such a declaration That is a cost our country cannot afford.
The members of the Parole Board are the decision makers in the process once they have been appointed by the minister of national security. The appointment, as we would expect, gets published in the Gazette. According to the first schedule to the act, the board may consist of, among other persons, a retired judge of the appeal or Supreme Courts or a retired police officer and/or a psychiatrist or psychologist, among other persons.
There are no procedures in place to ensure that the applicant is informed of the persons who will be making a decision that engages his/her right to liberty. This tribunal of secrecy is compounded by the fact that the applicant is never told of the date on which his application will be determined. There is, in the light of such an unfair procedure, the risk of either actual or apparent bias infecting such an important process, which would undermine the integrity of the system.
A REAL PROBLEM
This is not a fanciful possibility, as it can happen that the very police officer who was the investigating officer in the matter that resulted in the conviction of the inmate is now one of the persons on the board. This opens up the real possibility of a constitutional challenge, and we at the Office of the Public Defender think that Jamaicans would prefer that the issue be resolved by the legislature.
Parole is perceived by the authorities to be so much of a privilege that the various reports gathered about the applicant and made available to the board, in accordance with Section 7(3), are not disclosed to the applicant. The very reports that inform the board's decision in response to the application whether or not to grant parole are privileged information. The inmate, therefore, has no way to contest the reports which may contain information which he/she considers prejudicial to his application. We see this as very worrying, as our investigations have revealed decisions of the board, and it is clear that they rely on the contents of these reports.
It is for this reason that the Office of the Public Defender takes the view that this aspect of the process represents a clear breach of the person's right to a fair hearing, as outlined at Section 16(2) of the Constitution.
A reason given for the refusal of a parole application is: "The board, in its deliberation, recommends that you spend additional time in the Institution to benefit from rehabilitative activities." Our investigations revealed that few rehabilitative activities are in operation at the prisons, and of the few, there is a maximum number of inmates who can benefit. It would, therefore, be unfair and somewhat disingenuous if an inmate is being asked to benefit from an activity which s/he cannot access.
Another reason given is, "The board agreed that parole could not be granted at this time due to unfavourable reports that were submitted on your behalf." There is no indication of which reports are unfavourable or what was stated therein. The Office of the Public Defender recommends that reports gathered about the applicant must be disclosed to him/her at least 14 days before the hearing so that s/he or the representative can get an opportunity to challenge adverse material contained therein which, more often than not, leads to refusal of parole.
BALANCE IS ESSENTIAL
However, in advancing this recommendation, we recognise the need for balance. The right to liberty, like the right to a fair hearing, is not absolute. In that, we recognise that there can be those instances where the State will take the view that on account of national security, or the need to protect the safety of a third party or not to adversely affect prison security, there might be a need to partially or fully withhold a report that is being used.
The Office of the Public Defender takes the view that the correct approach in such instances should be for the State to make the application for partial or full withholding to the board (giving the applicant notice, of course), with the burden being imposed on the State to persuade the board of its concerns. Such an approach would be Charter of Rights compliant and not ignoring the rights of the inmate to a fair process.
We invite citizens to take a look at our position ('Parole: ensuring freedom, delivering security') and submit their views via our website, www.opd.gov.jm.
Victor Hemmings is an investigator at the Office of the Public Defender. Email feedback to firstname.lastname@example.org.