CHAIR of the joint select committee of Parliament now reviewing the proposed Bail Act 2022, Marlene Malahoo Forte, is expressing dissatisfaction with some submissions to the committee, and is questioning whether individuals/organisations have properly read and understood the proposed provisions of the Act.

Malahoo Forte, who was discussing the matrix setting out the comments and suggestions by presenters during the committee meeting on Wednesday, pointed out that the public places great reliance on the authority when statements are made, “so depending on the level of eminence attached to someone, importance is going to be placed on the statements made whether those statements are correct or incorrect.”

She said she was particularly displeased with some of the comments made by the Norman Manley Law School.

“I can’t help but express my own disappointment in some of the submissions that came, including some of them that came from the Norman Manley Law School and this is not saying that you must agree with everything or anything, but it is the level of analysis that I would expect to come with the matters which, for the most part, I found to be missing,” she said.

An aspect of the law school’s submission suggested that the overall extension of time limits throughout the proposed Act for keeping persons in custody, “even when cleverly broken down into different tranches, work unfairness to the subject”.

“The impact of these time impositions is not only to increase the periods of time an innocent person spends in custody, but also to suspend the usage of habeas corpus. All together and when added to the other infringements in the Bill, these provisions are likely to be unjustifiable under the Constitution,” the submission read.

Malahoo Forte, who is also minister of legal and constitutional affairs, countered this statement to say that  “the law is not speaking about extending time for keeping people in custody, it is saying that you don’t keep them in custody and it sets specific time limits”.

“We have time limits in respect of the further 48 hours, we have time  in respect of  how long you can keep someone on pre-charge bail and what must happen afterwards. We have the invoking the jurisdiction of the court to monitor how long the person is kept in custody because that is not a matter that is determined out of court even in a pre-charge context and I don’t know who is better placed to determine having assessed all of what needs to be assessed what would be fair in the interest of justice and in the interest of the particular defendant and that’s why I wonder if the concern about the time period is one thing but the general way in which some of the comments and recommendations were cast left me to wonder whether there was a proper reading of the proposals,” she said.

Meridian Kohler of the Norman Manley Law School had argued during her oral presentation to the committee in December 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.

On Wednesday, Malahoo Forte went on to lash out at the institution, citing a “lack of a nuanced approach that one would reasonably expect coming from a representative of the institution”.

“Where I am sitting, it is entirely reasonable to expect that if you are analysing a provision as to whether that provision would meet the standard of derogation as provided for and as pronounced upon by the court, that you should come with the analysis starting with the justificatory criterion, looking at the test of proportionality, looking at the design of the scheme etcetera, all of the guidance that is provided for,” she said.

“I think it does an injustice to make broad statements and especially for those who are not learned in the law will swallow hook, line and sinker what is said when you fall short of doing the work at the depth that is so required,” she said.

Up to the time of the meeting’s adjournment in the afternoon, the committee had rejected most of the recommendations for various reasons.