THE joint select committee of Parliament reviewing the Bail Act, 2022 will continue its deliberation today with a clause by clause examination of the proposed legislation, before accepting more submissions on Wednesday.
Already sections of the legislation have come in for sharp criticisms, with claims that they could be unconstitutional.
During the most recent sitting of the committee last Thursday, representatives of Norman Manley Law School and human rights group Jamaicans For Justice (JFJ) took issue with the provisions of the Bill relating to pre-charge detention and pre-charge bail.
Meridian Kohler of Norman Manley Law School argued that there are portions of the Bill which are likely to be found in contravention of the constitution and, in particular, the Charter of Fundamental Rights and Freedoms.
“The Bill is likely to be found in violation of, inter alia, sections 13 and 14 of the charter as an unlawful encroachment because the provisions in question cannot be shown to be demonstrably justified in a free and democratic society,” said Kohler.
She said that the scheme created for the treatment of people arrested or detained for an offence for which they have not been charged, because of an insufficiency of evidence, undermines the constitutionality of the provisions.
“We talk about pre-charge bail but the truth is, at the same time we created pre-charge bail we created pre-charge custody…without a ceiling on the time that such persons could spend in custody,” declared Kohler as she argued that people held in pre-charge custody may never be charged.
“Legally, therefore, a person could spend years on pre-charge. Because in its first iteration a pre-trial defendant can spend up to six months on pre-charge bail, is already onerous and it can be argued that this length of time, regardless of type of case, is unreasonable.
“It would appear that the police can simply go back and ask for an extension of the pre-charge bail before the further period of extension. There is a review that it may be a ceiling for a year but the better view is that [the Bill] actually creates a circle, one provision moving to the next, and therefore there is no limitation,” she said.
Kohler said the law school is suggesting that either there should be no extension of pre-charge bail, or in the alternative, the legislation should only contemplate one extension which should only be contemplated in exceptional cases because not all cases require the same level of investigation and therefore the time required to carry that out will differ.
“And it certainly should be for a period that is significantly less than the six months if the legislation remains with that window,” she said.
In her presentation Mickel Jackson, executive director of JFJ, also zoned in on Section 5 of the Bill which, she said, her lobby group opposes in principle.
“The organisation’s position is that its existence may very well be deemed unconstitutional, not only with the current provisions within it but the fact that it will likely be abused by persons who are representing the State,” said Jackson.
She argued that Section 5 of the Bill should be removed in its entirety as it is offensive to the constitution.
“This person with no charges being proffered against them may be in custody for up to two weeks before Section 11 Subsection 3 kicks in where a judge will be reviewing the bail conditions,” noted Jackson.
She told the committee that JFJ is also recommending that the power of the police and the justices of the peace to impose conditions be removed in its entirety if that section of the Bill is kept.
“JFJ is saying that if Parliament is going to continue Section 5, we do not believe that the police and a JP ought to be involved in the granting of pre-charge bail. We believe that if the joint select committee is going to continue with Section 5, that the power and the authority should be limited to the courts,” said Jackson.
Responding to the two submissions, Minister of Legal and Constitutional Affairs Marlene Malahoo Forte argued that in instances where there is suspicion of an offence, time is required by the police to investigate and, depending on the complexity and how many people are believed to be involved, it will take time.
“Depending on exhibits, some of them will have to be forensically tested; you have to get witnesses; you have to get statements, et cetera. It doesn’t happen overnight. We do not move from arrest and detention to trial just like that; there are numerous steps in-between…It takes time,” she said.
Malahoo Forte further argued that the right to liberty, as important as it is and as normative as the courts have indicated, should be viewed as not absolutely guaranteed under the constitution of Jamaica as set out in Section 14 (1).
“As we put a suite of legislation together to address the crime problem, we have innovated, looking at where the boundaries are, but also target in an unprecedented way those offenders that are wreaking havoc in our society — and the provision in respect of pre-charge bail sets out one aspect of the targeting intervention,” declared Malahoo Forte.