Prominent local attorneys say any amendment to the Bail Act, so that people charged with gun crimes or murder are routinely denied bail, would be “unconstitutional” and eventually struck down in court.

“The minister (Minister of Legal and Constitutional Affairs, Marlene Malahoo Forte) has referred to people who are on bail and have been charged with crimes as being ‘at large’, and that is an unfortunate comment,” attorney-at-law Bert Samuels said.

“Because the inference is these persons have been granted bail by a court, a judge and those persons are treated as ‘at large’. When I checked my dictionary, ‘at large’ means a criminal who has escaped or a wild animal who has gone uncaged, and it therefore means, that the presumption of innocence has been railroaded by that comment,” Samuels added.

He referred to Section 14(4) of the Charter which says that “any person awaiting trial and detained in custody shall be entitled to bail on reasonable conditions unless sufficient cause is shown for keeping him in custody.”

“Bail is granted on certain principles, Section 14 (4) of the constitution says that a citizen is entitled to bail, and the cases of Nation and others and the case of Gowie, makes it clear that there is an entitlement to bail and those who are seeking to deny bail must put forward evidence before a court for the denial of bail so that the Bail Act cannot be amended to conflict with Section 14 subsection 4 of the Constitution,” he said.

Samuels said an amended Bail Act would be an exercise in futility.

“Every time they tinker with the Bail Act, a constitutional court has struck it down because you cannot get around Section 14, subsection 4 that says a person is entitled to bail,” Samuels said.

READ: People charged with murder, gun crimes to be denied bail under new Act – Malahoo Forte

On Tuesday, Minister Marlene Malahoo Forte served notice that people charged with certain crimes will be denied bail under an amended Bail Act as she made her contribution to the Sectoral Debate in the House of Representatives.

“… a new Bail Act is coming. I wanted to table it today but we are revising the wording of some clauses,” she said.

“I will say no more at this stage, except that “if yuh on murder charge you cannot be at large and if yuh on gun charge yuh cannot be at large”.

Prominent attorney-at-law Christopher Townsend argued that the administration should not tinker with the Bail Act as judges should not rubber stamp a policy position by a political administration.

“The judges are there to infuse the human element into the justice system so it is not just some stoic entity of government, it is human-based , and that ‘s why judges are there, They are not there to rubber stamp but to put the human element into the system so that justice and balance can be achieved for the individual,” Townsend said.

Townsend added that amending the Bail Act would “open the door to trample on people’s rights and the right to bail is an exceptional right that is being whittled away slowly”.

“This is a huge overreach, leave the judges alone, allow them to do their job, you don’t need to do it for them,” Townsend said passionately.

A joint select committee of the Parliament has been reviewing the Bail Act and Malahoo Forte had signalled for some time that a Bill was to be tabled soon. The police have long advocated that certain individuals should be denied bail and have pointed to anecdotal stories where individuals on bail have been fingered in fresh homicides and gun crimes as they merely continue a life of crime before the interruption of an arrest.

Another attorney-at-law, Donahue Martin argued that the government must be careful not “over-incarcerate itself out of crime”.

“On the face of it, it is unnaturally unconstitutional, it will be struck down as unconstitutional by a full court so it might be an effort in futility on the part of the government. But the government needs to be careful we do not try to over-incarcerate our way out of crime,” he said.

“It has proved to be un-useful in the world….the general mood has been to over-incarcerate our way out of our crime problem, and that has been the root policy to get ourselves out of crime problem and that will only exaggerate our already existing socio-economic woes,” Martin added.

Martin pointed to institutional weaknesses within the justice system such as an over-reliance on eyewitness testimony and poorly funded intelligence-gathering operations which allow loopholes for criminals to avoid incarceration.

“We have an over-reliance on eyewitness testimony and eyewitness testimony is inherently unreliable. What you going to have is making criminals out of non-criminals. If we want to deal with crime, we have to catch the perpetrators with intelligence-driven operations, we need to invest more in the crime portfolio of the JCF, in the intelligence-gathering and investigative capacity of the JCF, right across the board, in the divisions themselves,” he said.