Bert Samuels | Does Malahoo Forte hear herself?
After the learned Queen's Counsel attorney general recited her constitutional CV as leader of the Bar and chief legal adviser to the Government in Parliament Tuesday, she immediately made explicit her contempt for the Constitution when she unequivocally admitted that there are legislative changes coming that are aimed at infringing and abrogating the guaranteed rights enshrined in our Constitution!
Unbelievable, coming from the mouth of a member of the executive/legislature of the Jamaican Government. On all fronts, this is a reckless misstatement. As an attorney-at-law, she is sworn to uphold the laws of Jamaica, including our highest law - the Constitution.
She is guided by the canon of our profession not to break those laws. Canon 3(f) states: "An attorney shall not act contrary to the laws of the land, or aid, counsel or assist any man to break those laws." Further, exactly four months ago on the March 7, 2016, she took an oath as MP and attorney general. May I remind Queen's Counsel Forte of her oath, in part:
"I, Marlene Malahoo Forte, do swear that I will be faithful and bear true allegiance to Jamaica, that I will uphold and defend the Constitution and laws of Jamaica ... ." The Oxford Dictionary's 9th edition defines the taking of an oath as "a commitment to future action".
When I heard the words of the attorney general that her advice to the Government is to deliberately breach our solemn Constitution, I thought that this was to be in the context of the declaration of a state of emergency. The Constitution allows for the suspension of some of our enshrined rights on a temporary basis, but the governor general's declaration of a state of emergency cannot last more than 14 days.
EXTENDED STATE OF EMERGENCY
If that period is extended, the Parliament must sanction its continuation with a two-thirds majority, and even so, it cannot go beyond three months. But, alas, my fears were not to be allayed. The attorney general has, in mind, to amend the ordinary law of the land to breach the rights guaranteed by the newly enacted Charter of Rights which had bipartisan support five years ago. This will be a permanent state of affairs, rather than the three months plus 14 days permitted by the Constitution!
Apart from abolishing trials for murder (non-capital) by jury, she announced the abolition of the statement from the dock! We have also heard that the narrowing/abolition of our rights will extend to the Evidence Act, the Criminal Justice Administration Act, and more.
Our saving grace may just be that the electorate only gave Mrs Forte's Government a one-seat majority. We will have to hope that the Opposition will not be tempted to unlawfully, recklessly, and deliberately join in this breaching of our Constitution.
I am now fully convinced that the Parliament has a fundamental issue with trials by jury. The laws passed by it in recent times, with stiff penalties ranging from 20 years to 30 years (scamming and anti-gang), are to be tried by a single judge. They have removed unanimous verdict for murder, reduced the number of jurors from 12 to seven, and now the true intent has been announced: the abolition of jury trials for murder!
May I refer to the judgment of the court the last time our Parliament dared to limit our rights under the guise of protecting us from the high crime rate? In that case, where it sought to amend the Bail Act fettering the power of a judge to consider bail, the State argued that the circumstances were to be found in the law's memorandum of objectives which stated that the laws were justified in that they were "aimed at reducing crime".
RIGHT TO BAIL
In the case handed down on July 15, 2010, where the right to bail in murder a case was limited by amendments to the Bail Act by our Parliament, the judge relied on the Privy Council case of Hinds and others vs R (1975) when the court said:
"So, in deciding whether any provisions of a law passed by the Parliament of Jamaica as an ordinary law are inconsistent with the Constitution of Jamaica [their Lordships] they are concerned solely with whether those provisions, however reasonable and expedient, are of such a character that they conflict with the entrenched provision of the Constitution and so can be validly passed only after the Constitution has been amended by the method laid down by it for altering entrenched provisions."
Madam Attorney General, the right to bail is not offence-driven, but rather liberty-driven, for that reason we are 'entitled to bail' unless those who wish to deny us that right convince a judge otherwise.
So, we no longer have a protocol where the minister of justice or national security, acting on the collective responsibility of Cabinet, proposes a new law and, thereafter, the attorney general is consulted? We have, for the first time in my experience, the chef legal adviser placing the cart before the horse, so to speak.
May I remind the learned attorney general that we have a constitutional democracy? The legislature and executive are subjected to the Constitution, and not the other way around. The judge is to determine who gets bail, and not our MPs, through unconstitutional tinkering with the presumption of innocence and the right to liberty.
I end with my call to the attorney general to revisit her oath, and for the Opposition to stand up for our rights and vote against any attempt to disrespect our Constitution.
- Bert Samuels is an attorney-at-law.