Parliament did not trust the bail judiciary
The Privy Council has been urged not to be swayed by a claim that the Judiciary Parliament had shown a degree of suspicion when it passed legislation in 1994 to introduce a ban on bail for anyone accused of murder.
The “surprising submission” was made by senior state counsel Peter Knox, QC, in an appeal of a landmark Court of Appeal decision in February that ruled section 5(1) of the Bail Act of 1994, which prohibited bail for those accused of murder, was unconstitutional. The Court of Appeal said the provision removed the jurisdiction of judges to consider bail applications on murder charges.
In his remarks to a five-judge Privy Council panel on the first day of a two-day hearing on Wednesday, Knox said Parliament could overrule the powers and freedoms provided by the Constitution, and when it enacted the Bail Act 1994, he did. therefore due to concern over rising crime in Trinidad and Tobago.
As he pointed to several Hansard documents, Knox said it was important to examine Parliament’s justification in enacting the 1994 Act to introduce the ban on bail for murder.
He said at the time Parliament was concerned about the serious rise in crime and when the law was passed no one raised the alarm that it barred those accused of murder from applying for release on bail because she (granting bail for a murder charge) had never been done before.
Knox said the law was introduced to curb crime and disorder and maintain the common stance when it comes to offenses that carry the death penalty.
“Bail was not granted because we thought it was not possible, and nobody saw the slightest problem. This is because of the high crime rate. The public has the power to decide which laws are passed. “
He said there would have been an outcry had someone said the High Court should have some discretion to grant bail for murder. He also suggested that at the time the thinking of Parliament was that they did not trust the courts because at the time people on bail were committing crimes, which raised serious concerns.
“Parliament is saying ‘I don’t trust you’ (the court) and I’m taking away some of your jurisdiction.”
“Here you had a crime problem where people on bail were committing crimes. Before the Bail Act, there may have been a window of opportunity to grant bail, but it never happened.
He said when the law was passed, TT was the only country to have this ban, but insisted it was not unreasonable, especially as the law was passed by the special majority required to pass laws that took away rights.
“Parliament passed a law and maintained the common position in relation to the murder rather than opening it up. Nobody seems to have thought of it (giving bail for murder) but it wasn’t unreasonable or unjustifiable.
In his opening remarks against the state’s appeal, former Attorney General Anand Ramlogan, SC, said it was “surprising” to hear the state’s argument that the law prohibiting release under bail was “born out of a distrust of Parliament and its own legal system”.
“I take umbrage… That there may be public concern about how the courts decide cases is not unique to Trinidad and Tobago.” Ramlogan argued that the courts were not a populist institution, he said to equate public concern with a proposition that there was distrust of the legislative arm towards the judicial arm to justify an encroachment on the jurisdiction of the court, “was alarming”.
“Where do we draw the line? Today it’s (bail for) murder, tomorrow it might be something else.
He said the state’s claim that there was a level of mistrust in the courts because of the way bail was granted to people who committed crimes after accessing it was unfounded and unwarranted. and should have no influence over the lords of the law.
He also accused the state of introducing new arguments that had not been made before the Court of Appeals in his concession that the courts had the discretion to grant bail before committal, although this has never been done.
Ramlogan continues his observations on Thursday.
Earlier, Knox, in defending the enactment of the law, said it was not enough to say that Section 5 was unreasonably unjustifiable in a society that duly respected the rights and freedoms of the individual, as has judged the Court of Appeal in the decision of Akili Charles. , a former murder defendant who challenged the bail ban.
Knox said the question to be determined by the lords of the law was whether the law was capable of justification. He maintained that yes.
Knox admitted that prior to the 1976 Constitution, although there was discretion for the court to grant bail for murder, it was never done. However, he said this discretion did not apply to defendants who had already been committed to trial.
“It was unusual to grant bail for murder… It was understood that prior to 1976 bail would not be granted for murder if incarcerated,” he said, adding that under a 1971 order, the courts still had the power to do so, but only in certain special circumstances, such as unreasonable delay.
Lead attorney Fyard Hosein also appeared for the state, who argued that Sections 4 and 5 of the Constitution were not absolute rights. He also said that the fact that defendants spent excessive periods in prison before trial was an operationalization problem. He said that after the Bail Act 1994 was passed, not once did Parliament see fit to revise Section 5.
“There has not been a single dissent that would cause you (the court) to remove the ban now.”
He said a defendant, who had been denied bail for murder, was not left without redress since the courts can intervene beyond the considerations of Articles 4 and 5, as they did in the Jamaican Pratt and Morgan case.
In this case, the Privy Council ruled that it would be unconstitutional to execute a prisoner who had been on death row for more than five years due to excessive delays between conviction and the execution of the death sentence. . In such cases, the death sentence is commuted to life imprisonment.
Since the Court of Appeal’s decision in February, four bail applications have been granted.
In the case before the Privy Council, the presiding judges are Lords Hodge, Kitchin, Hamblen, Burrows and Stephens.