Daraine Luton, Senior Staff Reporter
A PROVISION in the anti-gang bill for persons charged under the law to be tried by a single judge has been categorised as potentially unconstitutional by the Norman Manley Law School.
Nancy Anderson, who was making a submission before the Joint Select Committee of Parliament considering the bill, last week opined that the in-camera, single-judge provision in the bill contravenes provisions in the Charter of Rights which was passed three years ago.
"This is in violation of section 16 of the Charter which guarantees citizens due process," argued Anderson.
The anti-gang bill proposes that the jurisdiction of a Circuit Court to hear and determine offences under the act shall be exercised by a judge sitting without a jury and that there shall be no preliminary examination or committal proceedings.
National Security Minister Peter Bunting noted that the provision mirrors legislation governing the Gun Court which has been challenged all the way up to the Privy Council, and has been found to be constitutional.
He also noted that the anti-lottery scam bill which was recently passed by Parliament also allows for a single judge, without a jury to try cases.
Charter passed after ruling
But Anderson noted that the Charter of Rights was passed after the Privy Council's ruling on the Gun Court.
"I would not be surprised if the legislation is challenged if it is passed as it is now," said Anderson.
The Charter of Rights, which replaces Chapter 3 of the Constitution, says all persons charged with an offence are guaranteed a fair hearing within a reasonable time.
"We have to be fair to our citizens. When the Constitution guarantees something we go as far as we can to make sure that it is preserved and only when there is, and can be shown, to be a clear danger for the witness should we go to this level," Anderson said.
"We need to explore other things first before we deny citizens a fair trial in an open court before a jury if it is a serious offence," added Anderson.
However, Bunting, who chairs the committee, said with criminal gangs wreaking havoc on the land, the State has a responsibility to prioritise the constitutional right of the right to life.
"If we have to compromise on one, it is much more important to guarantee the right to life which we are trying to speak directly to with this piece of legislation," Bunting said.
He argued that witness intimidation is a major tool in the arsenal of gangs.
The national security minister also heard a suggestion from the law school that Jamaica adopt the approach of the United Kingdom where in circumstances where witness intimidation can be established, an application is made to the court for a non-jury trial.
"In our society, witness intimidation takes place even if they don't have a specific threat. They would assume a threat just by living in a particular society," Bunting said.
He added: "I think we have to be careful how we want to import from a country which has a much different societal reality and which has a murder rate, probably five per cent of what it is in Jamaica, and where criminal gangs have a tiny fraction of the impact they have on the lives and the quality of life of the country."
Bunting received support from Delroy Chuck, the opposition spokesman on national security, who said serious gang conflict is creating havoc for the country.