Sat | Sep 23, 2017

Gordon Robinson | Mrs Malaprop allergic to reason

Published:Sunday | July 10, 2016 | 7:00 AM
Marlene Malahoo Forte

The lunatics are now in total control of the asylum. On Tuesday, Jamaica's attorney general promised ordinary citizens' constitutional rights "may have to be abrogated, abridged or infringed because ... the evidence we are examining convinces us that such action may be demonstrably justified in this free and democratic society".

Well, kiss my granny gungus natty! The attorney general, a constitutional officer who swore an oath to "uphold and defend the constitution of Jamaica" and whose principal job is to advise Government on the legality of its actions against citizens, has threatened to attack the very Constitution she's supposed to defend. She wants to legislate the "threshold for the consequences that will flow when people choose to murder and cause mayhem", a direct interference with the judiciary that has repeatedly been declared unconstitutional by the Privy Council.

It seems the problem being addressed in this ham-fisted, draconian way is the recent upsurge in violent crime, especially in 'The Wild West'. Obviously, police can't control crime, so Marlene Malaprop rides to the rescue on her parliamentary steed, her fire-breathing dragons hovering above awaiting her command, wildly swinging her legislative sword, cutting a bloody and unconstitutional swathe among denizens of darkness. Some of us will lose liberties; some will be subject to whimsical arrest without bail; some will suffer; some will die.

No matter. Mrs Malaprop made a stirring speech; controlled many news cycles; and is Jamaica's new national security AND justice czar. We're rescued.

PSYCHE!

Apparently, Mrs Malaprop can read "demonstrably justified in this free and democratic society" but fails to grasp its meaning. Otherwise, I'm sure she'd have spoken more circumspectly.

The Canadian Constitution's Charter of Rights has a similar proviso. If a statute infringes upon constitutional rights, the onus is on Government to prove its actions passes "The Oakes test" [see R v Oakes (1986) 1 SCR 103; Canadian Supreme Court; per Chief Justice Dickson]:

Oakes was charged with narcotic trafficking. The Narcotic Control Act provided that an accused found in possession of a narcotic must prove (on a balance of probabilities) he wasn't trafficking.

 

UNCONSTITUTIONAL

 

The court found this mandatory presumption of guilt unconstitutional, so considered whether it was "demonstrably justified" creating the Oakes test as follows:

There must be a pressing and substantial objective.

The means must be proportional.

(A) The means must be rationally connected to the objective.

(B) There must be

(i) minimal impairment of rights; and

(ii) proportionality between the infringement and objective.

With regard to the second limb of the test, Dickson CJ opined: "This involves ... three important components. The measures must be fair and not arbitrary, carefully designed to achieve the objective in question and rationally connected to that objective. In addition, the means should impair the right in question as little as possible. Lastly, there must be a proportionality between the effects of the limiting measure and the objective ... ."

The means must be "fair and not arbitrary"; "carefully designed to achieve the objective in question" and "rationally connected to the objective".

Jamaica's pressing and substantial objective is the reduction of out-of-control violent crime. No bail for murder charge! Is that "fair"? Is it "not arbitrary"? Why not no bail for lottery scamming? Or wounding? Or illegal possession of firearm? Is this "carefully designed" to achieve crime reduction? Did 1970s indefinite detention achieve crime reduction?

In the Oakes case, Dickson CJ wrote: "There was no rational connection between the basic fact of possession and the presumed fact of possession for the purpose of trafficking ... ."

What is the "RATIONAL connection" between arrest/charge and guilt so as to justify custody without hope of bail? Regarding minimum sentences for murder, we already have the death penalty for capital murder and life sentences otherwise. What's the RATIONAL connection between interfering with a judge's discretion on minimum time before parole and crime reduction? Remember, Mrs Malaprop, who gleefully invited constitutional challenge to her sword of constitutional infringement, must prove the connection. Long before the process reaches that stage (judicial discretion), perpetrators must be CONVICTED. What's JCF's current murder conviction rate? How many murder arrests are converted to convictions? What's RATIONAL about starting at the back end? Is the objective of this constitutional infringement to ensure that arrest = indefinite detention without trial?

 

UPGRADE POLICE

 

Next, the infringement should be as little as possible. But this infringement is fundamental (equivalent to a reversal of the presumption of innocence). Why? The REAL societal problem is that the police can't catch murderers, nor prove their guilt in court. The RATIONAL solution to that problem is to upgrade police and prosecutorial capabilities. But, crowd-pleasing speeches and insane laws can't accomplish this. Government might actually have to spend money. It takes cash to care.

So, the reality is Mrs Malaprop has about as much chance of proving these unconstitutional measures "demonstrably justified" as she has of flying backways on a broomstick to the moon.

Jamaica has imposed FIVE states of emergency (SOE) in its brief history:

October 2, 1966, declared in response to outbursts of political gang violence in troubled zones (West Kingston/South West St Andrew). The SOE lasted 33 days, during which police/military personnel searched the area "house by house; business place by business place" (Gleaner; October 4; 1966), looking for weapons and materials for making bombs;

Saturday, June 19, 1976 for TWO HUNDRED AND FIFTY-FIVE DAYS (ended February 28, 1977) declared in response to increased violence across the country. Security forces were instructed to "lock up and keep locked up all persons whose activities are LIKELY to endanger the public safety and, in particular, gunmen and terrorists" (Sunday Gleaner; June 20, 1976). PM said SOE was necessary because of increased crime at "a scale unique to our history". Three ten-hour curfews beginning at 8 p.m. were imposed in sections of the Corporate Area.

From September 10, 2004 for 30 days declared in advance of Category 4 Hurricane Ivan.

August 19, 2007 for five days to deal with reports of looting, shooting and "further reports of sizable groupings of armed criminals sighted in sections of the Corporate Area" (Gleaner; August 22, 2007) after Hurricane Dean;

May 23, 2010 for 61 days in advance of an attempt to arrest Christopher Coke on an extradition warrant because of "information and advice provided by the security forces that actions were being taken which pose significant threats to law and order in the Corporate Area" (JIS; May 23, 2010). According to PM Golding, "What's taking place is a calculated assault on the authority of the State that cannot be tolerated."

So, it's once more on to the breach, dear friends. The lunatic fringe cycle of fear has been cranked up yet again. Let's not bother giving police needed resources. Let the dawgs out!

For those extolling the virtues of foreign 'tough-on-crime" leaders (e.g., 1990s New York Mayor Rudi Giuliani), there's a Grand Canyon-esque chasm between being tough on crime and being unconstitutional. Giuliani NEVER infringed on one US citizen's fundamental constitutional rights. His success was:

Most important, giving the police the resources they needed (including modern computer systems) to track crime and make area supervisors accountable;

Introducing a zero-tolerance policy on minor crimes. Misdemeanour convictions shot up under Giuliani, as did safety on subways, thanks to his cracking down on graffiti, fare-jumping and other trivial ...

 

NOT AS EFFECTIVE

 

However, too much credit has been given to Giuliani's tough tactics for New York's improvement from the world's murder capital to the world's safest city. Statistics are malleable. New York's 1990s drop in murders did correlate with the rise in misdemeanour arrests (source: 2001 Kelling/Sousa study), but it also correlated with the rise of the New York Yankees. Correlation alone isn't causation. Giuliani's tough policing tactics (all constitutional) were effective but:

- Violent crime in New York began falling three years before Giuliani took office; property crime four years before;

- New York wasn't unique but part of a trend that saw crime fall sharply nationwide, particularly in big cities. San Francisco produced the biggest crime reduction during this period;

- Independent studies failed to link Giuliani's tactics to the crime rate decrease.

- Many criminologists believe New York's decline, as Chicago's, San Diego's, Miami's, etc., was because a complex mix of social and demographic changes, including a break in the crack cocaine epidemic, an improving economy, and increased prison terms for proven lawbreakers (source: Wes Allison, September 1, 2007 on Pulitzer Prize-winning Politifact.com).

Please, stop the facile, rabble-rousing speeches; admit the REAL problem; and start applying RATIONAL solutions.

Peace and love.

- Gordon Robinson is an attorney-at-law. Email feedback to columns@gleanerjm.com.