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Jamaicans found with illegal drugs on high seas could be sent away for trial

Published:Friday | December 4, 2015 | 2:36 PMDaraine Luton

JAMAICAN NATIONALS found aboard vessels containing contraband such as drugs on the high seas could soon be denied the opportunity to return to Jamaica to stand trial.

The Government yesterday attempted to secure the passage of an anti-crime bill to allow for the use of ministerial discretion in the process of determining which Jamaicans are returned to stand trial and which ones are sent to treaty states such as the United States of America to face its justice system.

However, the effort was thwarted by legislators from both sides of the Senate, who argued that the bill offends the Constitution.

Mark Golding, the justice minister, brought the Maritime Drug Trafficking (Suppression) bill to the Senate and argued that it was important in helping in the fight against narco-trafficking and organised crime.

The bill proposes to give the national security minister power to waive Jamaica's jurisdiction over nationals who have been found on vessels with contrabands to be tried in Jamaica.

"We have had repeated situations where traffickers are held at sea with large amounts of contraband and the vessel, the contraband, and any non-Jamaican nationals are taken for prosecution in the US. The Jamaicans have to be handed over to the local police, after which a habeas corpus application is quickly filed in the Jamaican court to secure their release, which the prosecution cannot effectively resist as it is not, and will not be, in a position to proceed with a prosecution in Jamaica," Golding said.

"This unsatisfactory state of affairs promotes the image of Jamaica as a soft haven for narcotics trans-shipment through which illegal drug traffickers can effectively escape the reach of international law-enforcement. It also gives a perception of unwillingness by Jamaica to cooperate with its international partners and is sapping their willingness to cooperate with us by allocating valuable strategic law enforcement assets to assist in patrolling this part of the Caribbean," Golding argued.

Additionally, he said that as a result of the limitation on Jamaica's ability to successfully prosecute these cases, Jamaica's national security is compromised.

However, Tom Tavares-Finson said that the bill flies in the face of the constitutional provision for a fair trial.

Similarly, K.D. Knight, a government senator, said that the waiving of jurisdiction over nationals is akin to extradition, and argued that due process must be followed.

Tavares-Finson said that Jamaicans, not knowing that the vessel on which they are travelling has contrabands, could fall victim to a bad piece of law.

"What we are doing here, as far as I am concerned, is in breach of Section 16 (1) of the Charter of Fundamental Rights and Freedom," the opposition senator said.


"What we are seeking to do is even more offensive because we are seeking to give a politician, the minister of national security, the right, simply by virtue of a signature, to abrogate the rights of Jamaican citizens," he said.

Knight, under whose watch as security minister the parent statute was passed in 1998, said that the proposal for the waiving of jurisdiction was in the bill when it was first brought to Parliament but was removed because it was found to be offensive.

Like Senator Arthur Williams, Knight said that he could not support the bill unless there were clear guidelines setting out the processes that must be followed before the minister is able to exercise the power as proposed in the bill.

"In the absence of that, I would have to be persuaded that Jamaica, by virtue of the strain that it is under, must resort even to the most draconian measures in order to protect itself or must be prepared even to sacrifice the constitutional rights of its citizens to deal with this problem," Knight said.

"I would have to be persuaded. I don't know who could," he added.

But Golding said that the arguments about constitutional rights were misplaced.

"When you are on the high seas and you are apprehended with contraband, you don't have any right to be prosecuted in any jurisdiction. That is not a right that you hold. It is the State that has jurisdiction over the vessel, and it is the State that has a right to decide whether to have you brought home or allow you to be prosecuted elsewhere," Golding said.

He argued that the narco-trade is linked closely with the importation of guns and the Government has a responsibility to protect the right to life of its citizens. He said, too, that in entering into treaties with countries, the Jamaican Government satisfies itself that its citizens will get a fair trial in those countries.

"This argument about violating constitutional rights is based on an entirely false premise," Golding said.

Debate on the bill, which has already been passed in the House of Representatives, has been suspended to allow for further consultation.