UWI law faculty warns Bail Act could be unconstitutional Loop Jamaica

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Black Immigrant Daily News

The content originally appeared on: Jamaica News Loop News

Another entity has taken issue with the Bail Act, which is currently being examined by a Joint Select Committee of the Parliament.

This time it is the Faculty of Law at The University of the West Indies, Mona, which has warned that certain provisions of the Bill could be unconstitutional. This follows similar warnings from lobby group Jamaicans for Justice and the Norman Manley Law School in their recent submissions before the committee.

In its written submission before the committee on December 8, the law faculty focused on the Second Schedule to the Act, which it noted is divided into two parts. Part one treats with offences in respect of which bail may only be granted by a judge, while part two, purportedly, treats with offences for which an application for bail shall not be made after conviction.

The law faculty argued that “it is settled law that the considerations for the grant of bail pending an appeal against conviction and sentence are different from the considerations applicable to the grant of bail pending trial, in that the presumption of innocence is displaced by the conviction…”

“As such, the threshold to be met by an applicant for bail is higher,” it added.

The law faculty also pointed out that it is recognised that the express constitutional protection to bail in section 14(4) of the Charter of Rights is limited to bail pending trial.

“However, the right to bail pending appeal is a common law right, and statutes affecting common law rights ought to do so expressly or by necessary implication,” it said.

The law faculty argued further that more pointedly, with respect to statutes which affect fundamental rights, the common law principle of legality applies, which requires clear statutory words to affect common law fundamental rights.

It said: “It can hardly be argued that the right to bail pending appeal, despite the need for heightened considerations, is not a fundamental common law right. As drafted, the Bail Bill seeks to remove this common law right without express words. Any notion of the removal of the right to bail pending appeal in certain cases must be strung together from an expansive interpretation of clause 13 and the heading to Part II of the Second Schedule”.

Continuing, the law faculty said: “This is insufficient, and creates an awkward situation where the common law threshold, which is lower than those set out in clause 13, may be applicable to the scheduled offences (which are very serious offences), while other offences will be subject to the higher clause 13 threshold.”

It warned that “even if express words are used to remove the right to bail pending appeal for certain offences, there is still a strong possibility that such a notion will be unconstitutional”.

The UWI law faculty also argued that an independent judiciary is a cornerstone of a democratic society. It said it has been accepted that decisions on bail are intrinsically judicial and that the removal of discretion in this respect, even when done by a constitutional amendment, run contrary to this basic constitutional norm.

It pointed out that these ideas have been affirmed by the Privy Council as recently as July of this year in Charles v Attorney General of Trinidad and Tobago, where provisions which removed the right to bail after a charge of murder and other serious offences were declared as unconstitutional in light of the removal of the court’s discretion.

It said that while Charles dealt with the question of bail pre-conviction, the principles on which the Board’s decisions are based are equally applicable to post-conviction questions on bail. Additionally, it pointed out that provisions removing bail pending for convictions which attracted a death sentence or custodial sentences for a term of over five years were ruled unconstitutional by the Ugandan Constitutional Court in Foundation for Human Rights Initiatives v Attorney General.