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Drastic measures - Radical changes coming to tackle murder wave, says Malahoo Forte

Published:Tuesday | July 5, 2016 | 12:00 AMEdmond Campbell
Attorney General Marlene Malahoo Forte

Attorney General Marlene Malahoo Forte has sent a strong signal that the Andrew Holness administration is prepared to make radical changes to cramp the spiralling murder rate, declaring that some "fundamental rights and freedoms guaranteed to Jamaicans may have to be abrogated, abridged or infringed".

In her contribution to the Sectoral Debate in Parliament yesterday, Malahoo Forte suggested that the evidence of the brazen killings and other criminal acts have convinced the administration that "such action may be demonstrably justified in this free and democratic society".

However, experienced attorney-at-law K.D. Knight has issued a caution to the attorney general, noting that while he understood the grave concern about the state of crime in the country, "it is not necessarily the case that if you abrogate the rights of the average citizen that that assists in the fight against crime".

The attorney general said she had already begun to discuss some of the proposals with the private and public Bar and Chief Justice Zaila McCalla in her administrative role as head of the judiciary.

"While judicial discretion must be preserved and respected, Parliament, in the exercise of its powers to pass laws for peace, order and good government, will have to set the threshold for the consequences that will flow when people choose to murder and cause mayhem," she said.

"This attorney general is advising the Government very carefully. When we pass laws, they are presumed to be constitutional unless and until they are set aside by a court of competent jurisdiction, but we are prepared to pass the laws and have them tested in the courts because we must do something about the murder problem."

The attorney general also made it clear that the Government would seek to amend the Bail Act again. In 2011, the Supreme Court declared certain amendments to the Bail Act a breach of the Jamaican Constitution, based on a challenge brought by two murder suspects.

However, Malahoo Forte said the Government would seek to make amendments to other pieces of legislation such as the Criminal Justice (Administration) Act, the Jury Act, the Evidence Act, the Criminal Justice (Plea Negotiations and Agreement) Act, the Firearms Act and the Offences Against the Person Act.

Knight argued that while he was not aware of the specific amendments being contemplated by the Government, "the attorney general should remember that there is no longer a presumption that what the State does is constitutional, and so if Parliament passes a law which infringes the Constitution, then as [the court] did with the amendment to the Bail Act", it should be struck down.

And, the Government's chief legal adviser told her parliamentary colleagues that "right now, the sentiment is that 'no bail for murder, unless self-defence arises on the Crown's case and the likelihood of an acquittal is high'."

She said the administration is also considering abolishing jury trials for non-capital murder and go "judge alone".

But Knight again warned against this proposed move, saying jury trial was so entrenched in Jamaica's jurisprudence that to disturb it would be dangerous.

On the question of the right of appeal for the Crown, Knight said if the Government pursued that proposal, it would be resisted by the Bar.