Frank Phipps, ContributorJAMAICA IS going through a period of the 'best of times and the worst of times' for human rights.
Whoever decided that Cabinet meetings should be held in secret knew what he was about.
How would there be justification in public arena of the obvious conflict between the proposed Charter of Rights on one hand, and on the other hand, legislation coming from Parliament where little by little, rights and freedoms are being eroded?
The Charter of Rights, which is intended to improve on the Fundamental Rights in the present Constitution, has long been in gestation "... for 15 years!" the Minister of Justice complains, even while accommodating a late intervention by church leaders.
Before the birth of the charter, and during the period of existing rights in the present Constitution, the Minister of National Security has been resolute in providing harsh and severe measures for the control of crime; measures that offend against the concept of human rights in a civilised and democratic society without corresponding effect in the reduction of crime.
PERILOUS SITUATION
No one in his or her right mind can accept or condone the high level of criminal conduct, especially murder, in Jamaica at this time. We are in a perilous situation and it is imperative that a solution be found, but don't throw out the baby with the bath water. It is not beyond the intellectual capacity of persons of goodwill to identify and understand the problems that have given rise to our present state of affairs, and to find a solution with provisions for the reduction without patent abuses of the rights by agents of the State. If we continue in the present way we may win the battle but lose the war, as illustrated below.
The Suppression of Crimes Act, now repealed, but the provisions reintroduced by the back door, denied an individual the right to privacy of home and property, and protection from search of his person. These are extreme measures that do not prevent an escalation in crime. The Gun Court, (was painted red because it is dread), continues today with its infamous and disreputable provision for secret trials, and crime increases. Jamaica was withdrawn from the International Covenant on Civil and Political Rights. (ICCPR) thereby precluding the UN Human Rights Committee from hearing cases relating to the death penalty because that institution was seen as an obstacle to hanging. This did not reduce the incidence of murder in Jamaica, and there still is no hanging. The Extradition Act that allows citizens to be sent out of Jamaica to be tried in foreign states for crimes allegedly committed in Jamaica. This act not only discredits our legal and judicial systems but also deprives the citizen of the right to be tried in his own country with guaranteed constitutional provisions to secure protection of law. Evidence Amendment Act permits and accepts as evidence at trials, the statement of a person not made on oath, recorded in writing by the police, where the maker of the statement is dead, off the island, or cannot be found. The maker of the statement does not appear in court to be cross-examined where the accuser faces the accused in open trial. This allows conviction without a witness, and to it must now be added the latest proposals in the Proceeds of Crime Bill for seizure and forfeiture of property to the Crown without a relevant conviction.The Memorandum of Objects and Reasons for the Proceeds of Crime Bill states, "to authorise the confiscation of assets or benefits that are derived from the general criminal lifestyle of the defendant, as opposed to specific criminal acts evidenced by a conviction." And, "to forfeit property reasonably suspected to be derived from criminal conduct, where no one has been held criminally liable for that conduct." The legislation seeks to address deficiencies in the present law by creating an agency in the Ministry of Finance that can:(a) apply to the Supreme Court for forfeiture of property to the Crown where a defendant has been convicted of any offence (even in the Resident Magistrate's Court), after the court has determined that the defendant has a 'criminal lifestyle and has benefited from his general criminal conduct'.
(b) apply to the court in civil proceeding for a Recovery Order against any person believed to be holding recoverable property i.e. 'property obtained through unlawful conduct' not necessarily of a particular kind; and have the property vested in the Agency. Proceedings for a Recovery Order may be brought within a period of twelve years from the date on which the cause of action accrued; and the time limits otherwise in the Limitation of Actions Act shall not apply to these proceedings.
FORFEITURE OF PROPERTY
In proceedings for forfeiture of property or for a Recovery Orders the court shall determine any question arising on a balance of probabilities.
In the Third Schedule to the act there is provision for a member of the staff of the Agency, if authorised to do anything, he may for that purpose identify himself by means of a pseudonym, and he shall not be required to reveal his true identity.
This bill, if it becomes law, will unleash a weapon of mass destruction against the constitutional provision for security of property; it will cause more problems than it could cure in the fight against crime. It must be looked at very closely by each of us as it may affect all of us, most particularly by the Private Sector Organisation of Jamaica, and must be deeply considered before it is signed into law.
It is important to restate the above provisions with their restrictions and denial of human rights, which have not so far achieved the desired result for a reduction in crime.
While the learned Attorney-General and Minister of Justice is striving might and main to pass a Charter of Rights, the Minister of National Security with equal assiduity and resolution is doing all in his power to put together further ingredients for A Charter of Wrongs. We must be resolute and determined in the fight against crime, but we must be equally uncompromising and resolute in the protection of our basic human rights.
Frank Phipps is the well known attorney-at-law.
