Orville Taylor | Pungent odour in jurisprudence

You are a front-line security guard, and an armed man points a gun at you or comes at you with another deadly weapon, attempting to rob the stash. Better yet, you are a police officer and a female is in the passenger seat of a moderately tinted motor car. You signal the driver to stop, he points a gun at you, shoots and drives off. In that split second, you ask yourself if he is a threat to others or generally if the use of force policy protects you. With you in pursuit, he discharges his handgun again, you reply with three shots. He is severely injured, and crashes but a bullet flew through the skull of the passenger.

She dies!

Not wishing to be judge, jury or executioner, the officers from the Major Investigation Division (MID) charge you. Or a nervous investigator from the Independent Commission of Investigations (INDECOM) chooses to send the file to the Office of the Director of Public Prosecutions (DPP). The DPP rules that there is a slight bit of doubt or discrepancy regarding the sequence of events and a judicial review is necessary. Thus, you the police officer have to face a homicide charge.

Security guards can get representation from Legal Aid. Such a privilege is not available to the Son of Babylon. Unless he has money in his kitty, can work while on suspension or the Jamaica Police Federation (JPF) dips into its coffers, then he is as out in the cold as a homeless recent divorcee.

Such a scenario is only likely to happen to police officers in the federated ranks. It is uncertain what the khaki holds over some gazette officers’ minds; but clearly, any of them who says, “No bail for any murder or gun crime accused!” is either very selfish or delusional. At present, there are scores of police officers on homicide and gun-related charges arising from the execution of their duties.

Minister of Legal and Constitutional Affairs Marlene Malahoo Forte, who has been judge, senior lawyer, and who has given advice and taken action in the past, which defy logic to the untrained non-legal mind, says, “If yuh on murder charge you cannot be at large and if yuh on gun charge yuh cannot be at large!” Apart from the ‘F’ grade she gets for that corny attempt at poetry, she earns another for implied content and imputed contempt.

STUNNED

Attorneys who were senior counsel when she was a first-year law student and some of my peers from Cave Hill, who became lawyers the year she sat her first examination, are so stunned, one would think they were tasered. Or maybe, she was.

Having suffered the inconvenience of having to use brain cells, and perhaps would have preferred to save for retirement or drinking wine, I became pretty familiar with the old Constitution and the 11-year-old Charter of Fundamental Rights and Freedoms. Although a relatively short document, the Constitution is a big piece of latex, to guard from all sort of insidious incursions unto the average person, and indeed, the administration of justice in this very robust ‘demo-crassy’. One should not trifle with it.

We have the “the right to life, liberty and security of the person and … not to be deprived thereof except in the execution of the sentence of a court in respect of a criminal offence of which the person has been convicted…” Section 14 enforces that no one should be deprived of his liberty except by a court and “(d) … in order to secure the fulfilment of any obligation imposed on him by law; (e) for the purpose of bringing him before a court in execution of the order of a court; (f) the arrest or detention of a person – (i) for the purpose of bringing him before the competent legal authority on reasonable suspicion of his having committed an offence; or (ii) where it is reasonably necessary to prevent his committing an offence.”

MORE HURDLES

Our existing Bail Act of 2000 has more hurdles than the Olympic Games. Under this statute bail, though a constitutional entitlement can be denied if the court believes that the accused would “fail to surrender to custody… commit an offence while on bail; or interfere with witnesses or otherwise obstruct the course of justice or … is charged with an offence alleged to have been committed while he was released on bail”. This is not a complete list.

Contrary to the popular narrative, judges are not generally willy-nilly when granting bail. After all, most of them are former prosecutors and, even if purged from this inherent bias, deeply understand the law regarding bail.

People in privileged positions almost never think being accused of murder could happen to their children or relatives. Yet, we have had a few cases, including one whose impact is still resonating.

Still, my faith is with the judges, not a set of politicians who 74 per cent of Jamaicans believe are corrupt, and with good reason.

The emasculation of judges by stripping them of their independence cannot be something which Malahoo Forte fought for, but it certainly creates a pungent odour in jurisprudence.

- Dr Orville Taylor is head of the Department of Sociology at The University of the West Indies, a radio talk-show host, and author of ‘Broken Promises, Hearts and Pockets’. Send feedback to columns@gleanerjm.com and tayloronblackline@hotmail.com.