Sun | Jun 20, 2021

Editorial | Send right of appeal bills to joint select committee

Published:Monday | June 7, 2021 | 7:52 AM

Jamaica’s Parliament, at least the majority therein, should keep in mind what happened in 2017 when they snubbed their noses at suggestions for a deliberative approach, including its review by a joint select committee of the House and Senate, of the National Identification Registration Act, under which residents of the island would be compelled to sign up for a national ID. Prime Minister Andrew Holness felt that would take too much time. A series of perfunctory town hall meetings would suffice.

The upshot: the eventual law was embarrassingly struck down in its entirety by the court as unconstitutional. More than three years later, the Parliament is still figuring out what should, or should not be in a replacement law. Hearings are being held on the bill.

The bills now before the Parliament to give the prosecution the right of appeal in criminal matters in a range of circumstances, are not quite on all fours with the National Identification System (NIDS) fiasco. No one has claimed, at least not as yet, that the planned amendments to the Judicature (Appellate Jurisdiction) Act and the Judicature (Parish Courts) Act are unconstitutional. And neither is the political Opposition to have too many, if any, complaints about the bills. When they were in government and the current leader of the Opposition, Mark Golding, was the justice minister, he made cabinet submissions recommending legislation to give the prosecution the right of appeal.

That, of course, does not indicate that there is a clear consensus on the matter. There is substantial public unease, especially among defence attorneys, with the planned changes. Indeed, Delroy Chuck, the incumbent justice minister, has admitted to being a recent convert to the idea and has conceded that there are likely to be lawyers in the legislature (including on the government side) who have concerns.

TOO FUNDAMENTAL

But more importantly, these proposed changes to historic norms in Jamaica’s jurisprudential arrangements are too fundamental for their passage without a broader range of stakeholders having the opportunity to comment on them. In other words, Minister Chuck should suspend any plans he may have to continue the debate and passage of the bills tomorrow. A delay by another week would not be sufficient. Indeed, there is no compelling urgency to these laws. Or none that Mr Chuck has offered.

The right of the prosecution to appeal in specific circumstances would not be unique to Jamaica. It has been the case in Britain since 2003, as well as several of Jamaica’s Caribbean Community (CARICOM) partners, including Antigua and Barbuda, The Bahamas, Belize, Dominica, Guyana, St Kitts and Nevis, and Trinidad and Tobago.

The final courts for Commonwealth Caribbean countries, the UK-based Judicial Committee of the Privy, to which Jamaica subscribes, and the Caribbean Court of Justice, have, in several cases, held that such laws do not impinge people’s right to due process, or protection from double jeopardy– being tried more than once for the same matter by overzealous prosecutors, who, unlike most criminal defendants, are backed by the resources, and apparatus, of the State.

“There is nothing particularly unfair or unjust about a statutory rule which enables an appellate court to correct an error of law on which an accused person was wrongly discharged or acquitted and order that the question of guilt or innocence be properly determined according to law,” the Privy Council said in a 2006 judgment in the case State vs Boyce from Trinidad and Tobago.

It is what Jamaica’s Director of Public Prosecutions Paula Llewellyn, who suggests immaturity on the part of critics of the proposal, calls swinging the pendulum of justice “ in both directions, not only for the accused, but also for the victim”.

DEVIL IS IN THE DETAIL

But the devil is always in the detail – and in this case, too, the philosophy of justice.

For instance, the situation of other jurisdictions notwithstanding, there are voices in support of maintaining the status quo, arguing that the danger of abuse of innocent people under the proposed law, in a country with weak institutional arrangements, outweighs the likelihood of guilty people being improperly acquitted. Or, they suggest that any right of appeal should be specifically limited to circumstances where the original trial was manifestly a sham, as is possible in the United States (the only basis for appeal by prosecutors) as a result of the Harry Aleman case from the US Court of Appeals for the Seventh Circuit. Questions have been raised, too, about the prospect of the prosecutors being able to ask the appeal court for references on points of fact or law, or both, on which a person was acquitted, which, while not upsetting a verdict, may raise questions about its validity.

These, and other issues in the bills, this newspaper believes, would benefit from the opportunity for robust debate, notwithstanding Mr Chuck’s feeling that the defence Bar, as well as civil society groups, have been tardy in responding to the legislation since he tabled them last month.

Such far-reaching laws ought to have gone to a joint select committee, which invite submissions on the proposals and hold public hearings, rather than a quick movement through the House. It is not too late to put things right.

NB: This editorial was amended on June 7 to clarify that Mark Golding made cabinet submissions recommending for legislation giving the prosecution right of appeal rather than producing draft legislation. Mr Golding left office before the development of the draft legislation.