Tue | Sep 28, 2021

Letter of the day: POCA Provisions Unconstitutional

Published:Wednesday | August 26, 2015 | 12:00 AM


I make reference to the article 'Innocent defendants could face financial ruin under POCA' (Gleaner, August 25, 2015), where Justice Bryan Sykes of the high court raised issues about the manner in which the Proceeds of Crime Act (POCA) is utilised against innocent defendants and cautioned that it could subject them to unnecessary financial hardships.

The erudite Justice Sykes, for whom I have great admiration and respect because of his integrity, extensive knowledge of the law and procedures, his attention to detail, and his use of common sense in making judgments, have competently stated that, "There is the real possibility that an entirely innocent defendant may be hampered in refuting the State's assertions because the resources available may have to be consumed in seeking variations of the restraint order."

The Assets Recovery Agency (ARA), under the increasingly controversial POCA legislation, can obtain court orders to seize bank accounts and properties of persons if it is believed to be the proceeds of criminal activity, without even serving prior notice to those persons. The critical issue here is that law enforcement is not required to disclose what the suspected criminal activity is, nor do they need to prove, through conviction, that the suspect is guilty of the alleged crime.

Due process is a fundamental, constitutional guarantee that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the Government acts to take away one's life, liberty, or property. It is also a constitutional guarantee that a law shall not be unreasonable, arbitrary, or capricious.

The Charter of Fundamental Rights and Freedoms expressly protects and guarantees our property rights and our right to due process of law, but what currently obtains under the POCA legislation is that the State usurps an unreasonable and misguided course of action without regard for our rights or standards of the law.

This forceful exertion is a despotic element of power and authority over the innocent defendants which offends the very Constitution under which these rights are guaranteed. It is unconstitutional and unfair.

No legislation should be of such that it offends the fundamental rights of Jamaicans, and, particularly, that it blatantly violates the property and due-process rights of a citizen that is presumed innocent until proved guilty in a law court. The POCA legislation is a dismaying combination of perverse incentives for the State and unfair practices against the innocent, and it engenders a dangerous path.


Review The Legislation


We appreciate the spirit of the POCA legislation, but the rule of law and regard for our property and due process must be observed. Parliament must amend the legislation and require that law enforcement prove its case by clear and convincing evidence before any property may be seized or forfeited which could leave innocent defendants broke or buried in debt.

The legislators have erred by making it too simple for the Assets Recovery Agency to confiscate and profit from the property of innocent defendants, which thereby subject them to economic hardships and embarrassment.

Since the POCA legislation is doing more harm to the innocent, in contravention of due process of law, then a strategic review and amendments are imperative to ensure that the profit can be taken out of crime in a fair and acceptable manner according to law, while respecting the fundamental rights of every Jamaican citizen.