THE Norman Manley Law School has urged legislators to ensure that the passage of the Committal Proceedings Act 2012 now before a parliamentary committee is supported by a corresponding review of the resources needed to prevent the Bill from failing in its intention.
The Act seeks to abolish preliminary enquiries in Resident Magistrate's courts and provides for committal proceedings. According to the Memorandum of Objects and Reasons, the Bill seeks to reduce the "unnecessary delay and expense" in bringing criminal proceedings to conclusion. Legislators hope that its introduction will alleviate or reduce problems caused by the unavailability of witnesses to give evidence as well.
Making a submission on behalf of the law school to the Joint Select Committee of Parliament on Wednesday, tutor Norman Davis said "although the Bill has the potential to reduce delay and expense, and therefore enhance access to justice, it cannot do so standing by itself".
"Therefore, there is a need to ensure that the abolition of preliminary examinations, as presently conducted, does not result in a backlog being transferred from the Magistrate's Court to the Supreme Court," Davis cautioned.
He, however, said the requirement in the Bill for a review of the Act within three years "is hopefully an indication of a commitment to improve not just the Act when passed, but to provide for any infrastructural and resource needs found wanting".
Davis said prior to this, however, "there needs to be an analysis of these needs".
The law school has also voiced other areas of discomfort with the provision. Davis said the institution had found "inconsistencies in the Bill with the Constitution" as well as other legislation and common law.
According to him, while the general scheme of the Bill is constitutional, insofar as it seeks to replace oral evidence at preliminary examinations with committal proceedings based on written statements, there are "specific areas where the Bill is inconsistent with the Charter of Fundamental Rights and Freedoms passed in 2011, now incorporated in Chapter 3 of the Jamaican Constitution".
The law school based its argument on Section 14 of the Bill under which a judge of the Supreme Court has the power to issue a warrant for the arrest of a witness if satisfied by evidence that a witness is "unlikely to comply" with an order to attend trial.
"It is submitted that the effect of this section is that a witness may be deprived of his fundamental right to liberty under Section 14 (1) of the Charter of Rights; it is inconsistent with provisions in the Justice of the Peace Jurisdiction Act concerning the issue of warrants for witnesses," Davis argued.
The law school is also proposing that a provision be made for committal proceedings to be concluded within a reasonable time.
Committee Chairman Justice Minister Senator Mark Golding, responding to the concerns, said while he understood Davis' points, he did not agree with all of them.
The minister, however, said that the contribution by the institution was a "remarkable piece of work" in which "useful points were made which (the Committee) will take on board".