Sat | Feb 17, 2018

Letter of the Day | Denial of right to bail unconstitutional

Published:Saturday | January 27, 2018 | 12:04 AM

THE EDITOR, Sir:

The national security minister would be well advised to seek legal advice prior to making pronouncements on matters concerning the law of the Constitution, which he swore to uphold when he was admitted as a member of the legislature of Jamaica. He has recently said that bail should not be "considered" in cases of murder or gun-related crimes. Any such directive to the judiciary - be it legislative or executive - is, respectfully, misguided and unconstitutional.

The minister needs to understand the interplay between the presumption of innocence and Section 14 (4) of the Constitution which, without reference to any particular offence creating an exception, gives "ANY PERSON AWAITING TRIAL" a constitutional entitlement to bail. In short, "Parliament shall pass no law and no organ of the State shall take any action which abrogates, abridges or infringes on (that) right", that is the right to bail, a prohibition set out in Section 13 (2) (b) of our Constitution.

To add to the legal advice I have given above, I wish to share some legal experiences with the honourable minister. A person charged for an offence is not guilty until a competent court has made such a finding.

So the idea of denying a court's right to consider bail is to come to a view that that person is guilty before the benefit of a trial. I am sure the honourable minister would not wish a court to deny bail to a person where that court is of the view, at a bail hearing, that the evidence before it is very weak, or does not make out an offence.

The Charter of Rights passed seven years ago by our Parliament, of which the minister belonged, repeated the time-honoured principle that a man is presumed innocent until proven otherwise. Further, and flowing from this principle, is the fact that it is the prosecution who must prove his guilt, with no duty on his part to prove his innocence. And, finally, the charter imposes a duty on the prosecution at a bail hearing to show 'cause' why his release should be denied.

The minister must be guided that to abandon the principles stated above, because of our current crisis, is to buy into the incorrect idea that these rights we enjoy are part of the cause of the crime problem. They are not.

We have failed to employ adequate crime-fighting techniques with intelligence-driven approaches. We have sought to rely on human recollection when hard evidence is available but unused.

In closing, I quote a respected American attorney, Patrick Henry, that a constitution is drafted deliberately for "the people to restrain the government - lest the government comes to dominate our lives and interests."

The rights enshrined in our charter are never to be seen as obstacles to the attainment of justice, but rather, the vehicle that drives and guarantees the attainment of fair play and democratic freedoms, and which we must never, under any circumstances, derail.

BERT S. SAMUELS

Attorney-at-Law

bert.samuels@gmai.com