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Contribution of the Most Honourable Portia Simpson Miller
Leader of the Opposition
To Parliament
On the Crime Bills
June 7, 2010
Leader of the Opposition
To Parliament
On the Crime Bills
June 7, 2010
As I rise to make my contribution to the debate on the bills which are before this Honourable House, I am very conscious that events of the last two weeks are foremost in the minds of most Jamaicans.
Many of our people remain traumatised by the violence they witnessed and the loss of so many lives including civilians and members of the Security Forces.
Mr. Speaker, I want to place on record my condolences to the families of those who lost their lives in Tivoli, Denham Town, Kirkland Heights and St. Catherine.
I wish to salute members of the Security Forces who bravely fought to take our country back from the criminals. Mr. Speaker, some of them paid the ultimate price in the service of their country and we owe them and their families a debt of gratitude. The reality that criminal elements could have overrun our country was a frightening prospect for law abiding Jamaicans.
We, like most, want the security forces to find the criminals, wherever they are, root them out and let the law take its course. We want this to be done with the least bloodshed and the maximum protection of decent law abiding citizens, whether they live in mansions uptown, in vulnerable circumstances in the inner cities or in rural Jamaica.
It is therefore not surprising that with the present state of mind of the Jamaican people, the calls have become louder for these crime bills to be debated and debated quickly.
Mr Speaker, we understand the frustration and the impatience, but it would be a dereliction of our duty if we do not take the time and the care to ensure that each Bill is framed in such a way as to achieve the desired objectives of reducing, and indeed eliminating crime.
We have to examine seriously the impact of the six anti-crime bills on the rights of all Jamaicans especially the poor.
What is more is that for too long the poor have been denied those rights that these new measures propose to take away.
In essence, their situation may only get worse.
My concern is that the Prime Minister is rushing the passing of these anti-crime bills in an effort to appear tough in keeping with a promise to certain sectors of the society over the last two weeks.
Mr. Speaker a band aid is not sufficient to heal a gaping wound that is gushing blood and that is what we are facing now.
What it needs is a drastic surgery and good aftercare to fix the wound.
We really need a holistic anti-crime strategy that makes the people partners rather than the enemies of the police and the state.
For lasting peace, the police need to be seen as protectors rather than as oppressors.
THE BILLS
There have been various attempts in the past to address crime and violence. Many were met with strong, even forceful political opposition. This Opposition will not oppose for the sake of opposing because the interest, care and protection of the Jamaican people are our primary objectives.
Mr. Speaker, the Opposition is committed to any measure to reduce or eliminate crime that is why we participated in the Vale Royal talks. While we agreed in principle on some of the issues raised, we pointed out certain possible pitfalls in moving the process forward.
Nothing was done to address these concerns however. For a long time the Government tried to convince the public that the Bills had been stalled because we resisted their passage.
The Government knew that this was not the case, and in the spirit of true bi-partisanship in the fight against crime, must tell the truth about this process.
Mr. Speaker, the facts are indisputable: The Bills were submitted to a Joint Select Committee for its consideration and report to the Parliament. Several individuals and stakeholder groups made presentations to the Committee. They pointed out certain issues which they felt affected the rights of the Jamaican people which are presently guaranteed under the Constitution.
The Opposition members of the Joint Select Committee proceeded to make certain suggestions as to how those issues might be resolved. Yet the Government persisted in advancing the view that the Opposition was proving to be an obstacle to the passage of the Bills.
We will put forward those suggestions, once again, in this debate and the debate to follow on the two remaining Bills.
AMENDMENT of the FIREARMS ACT
I believe that the most challenging of the four Bills that are now being considered by this House is the one entitled: An Act Further to Amend the Firearms Act. That Bill proposes fifteen (15) years as the minimum sentence that may be imposed on a person who has been found guilty of certain firearm offences that are specified.
Mr. Speaker, the Courts, and in particular, the Privy Council, do not favour the Legislature stipulating mandatory sentences.
They base their disagreement on the principle that sentencing should be left to the discretion of the Judiciary.
They believe that the stipulation of a mandatory sentence encroaches on the province of the Judiciary and amounts to a departure from the principle of the separation of powers and functions of the Legislature and the Judiciary.
This is a principle that underlies the basic provisions of the constitution. It is true that the offences that are specified in the Bill are serious in the extreme. We all agree that the society must speak and move with one voice, and in the same direction in an effort to curtail and eventually stem the importation and transshipment of illegal weapons. Almost every Jamaican has been or knows someone who has been victim of gun violence.
The fear of gun violence has paralyzed our nation. We are afraid to leave our homes and business places.
Many of us have become prisoners in our own homes, locked up behind burglar bars. The more affluent among us are increasing their security and those who are not so lucky often times suffer at the hands of the murderers, rapists, drug dealers who have no mercy and are no respecter of persons. Not even our children and senior citizens have been spared.
In addition Mr. Speaker, the image of our beloved Jamaica has been battered and our brand severely devalued in recent weeks because of certain connections with the drug and gun trade.
Despite all of this, and despite our anxiety to stamp out crime, we have to ensure that decent and law abiding citizens do not become the victims of the very laws that are meant to safeguard their rights.
The laws we pass in this Parliament must promote Justice for every single Jamaican – for Miss Mary in Brown’s Hall, for Mass Aubrey from Queensbury in St. Elizabeth, for Mr. Smith from Norbrook or even a member of this Honourable House.
Take, for example, the illegal possession of a firearm. There are many circumstances in which an individual could be slapped with this charge.
Clearly, a court should not be prevented from taking into account all circumstances relating to how the firearm came into the possession of the person and the background of the individual.
The age of the individual, issues of illness and infirmity and a first time offender are some of the issues that should be taken into consideration when sentencing an individual. I am sure we would all agree that it would not be wise or fair to pass a law imposing a mandatory fifteen year sentence without examining all the circumstances of each case. A suggestion was made in the Joint Select Committee that convicted persons could apply to the Governor General for a pardon where appropriate circumstances apply.
But, Mr. Speaker, we must be careful that the Legislature is not indirectly transferring sentencing powers from the Judiciary to the Governor General, who is in fact a part of the Executive. We believe that in the case of Illegal Possession of Firearm, without more, the Chief Justice should be invited to institute guidelines to the Judges as to the sort of matters they may take into account when considering the important matter of sentencing.
Let me repeat, this must depend on the circumstances in the case before them. Those guidelines may be reviewed and changed from time to time. If we pass a law which includes a mandatory sentence, we would effectively tie the hands of our Judges even to the extent that the Court of Appeal would have no power to reverse any sentence where the interest of justice requires it.
With guidelines that all Judges are obliged to follow, the Court of Appeal would be in a position to decide whether or not a Judge had exercised his/her discretion properly. Mr. Speaker in this house any law we pass must minimize the likelihood of injustice for any Jamaican man or woman, rich or poor black or white.
OFFENSES AGAINST THE PERSON ACT:
Mr. Speaker,
The Bill entitled Amendment to the OFFENCES AGAINST the PERSON ACT also proposes a minimum sentence of 15 years for a person convicted of certain serious offences with the use of a firearm. The concerns we have regarding mandatory sentencing under the Firearms Act also applies in this case.
AN ACT to AMEND the BAIL ACT:
The tradition of our legal system is that the burden of proof is placed on the prosecution. We are however aware that, there are instances in which the law has moved away from the traditional course, and has shifted the burden to the accused.
Mr. Speaker, the socio-economic circumstance of many who find themselves before our Courts, do not always lend themselves to these persons being able to afford the legal representation necessary to show cause or reasons why they should be granted bail.
It is also proposed that the prosecution should have a right of appeal, if the accused man is granted bail. Again, this is a move away from the traditional course of action in our system in which the prosecution does not have a right of appeal in criminal cases.
The Opposition would wish to make one suggestion, that if the prosecution has any information in its possession which may assist the accused in the application for bail, they should be obliged to disclose that information to the court.
Further, if bail has been denied and information comes in the possession of the prosecution which could assist a court in reversing that decision, then the prosecution should be obliged to make it known to the court.
AMENDMENT OF THE PAROLE ACT:
This Bill proposes that any person who has been sentenced to life imprisonment, or to a term of 15 years or more, will not be eligible for parole before serving at least 10 years, moving from seven years...
The suggestion made with respect to possession of a firearm and guidelines being put in place by the Chief Justice could apply also in this instance, with the Parole Board or the relevant agency laying down certain principles.
At all times, we must use the passage of laws to protect decent people while forcing the criminals to pay for their crimes.
ONE COMMENT ON THE 60 DAYS IMPOSITION IN THE OTHER BAIL ACT AMENDMENT THAT IS TO BE DEBATED LATER.
We note that it is being proposed that this Bill is to be passed without a constitutional amendment and the required time limits imposed by the Constitution, when there is to be, in effect, an amendment to any provision of the Fundamental Rights and Freedoms Chapter.
The Government has now moved away from its previous intention to make use of Section 50 of the Constitution by way of a Special Act of Parliament.
The Opposition had advised the Government of the hurdles that would have to be crossed in such an initiative. It is to be noted that exception has already been taken by the stakeholders to the route that is now being proposed. We are suggesting that the Government engage in extensive discussions with those interested parties on the way forward. It has been suggested that the Opposition is being hypocritical in insisting that these matters should not be rushed and that they should follow the proper procedures and channels in this Parliament.
It can hardly make sense passing legislation which we know is going to be challenged in the courts. It is far better to arrive at a consensus as to the way forward, in the knowledge that what is being done can stand the test of time.
ARE LEGISLATIVE MEASURES SUFFICIENT TO FIGHT CRIME?
Mr. Speaker, everything must be done to reduce or even eliminate crime. But let us not forget that over the years various governments have passed legislation and instituted measures to reduce crime.
Yet, crime and violence continue to plague the society.
The Gun Court Act of 1974 was an attempt to contain panic over a crime rate of about 200 murders per year.
There was no provision for bail, sentencing was mandatory, and parole was granted (if at all) under rigid conditions.
The Gun Court continues to exist, but last year the murder rate was 1680, the highest recorded in our history.
The Suppression of Crime Act was passed at the same time as the Gun Court Act.
The police could seize, search or detain at will, thus reinforcing a type of policing that disregarded citizens’ rights.
The crime rate almost quadrupled by the time the Act was repealed in 1993. In 2008, the murder rate was 1618 and only 515 were cleared up.
The number of shootings increased to 1528 and only 545 were cleared up.
In terms of the conviction and admission to correctional facilities, the numbers are dismal.
Twenty-two (22) were admitted for shooting with intent and only 30 for murder. I believe that this tells the story most vividly of what really needs to be done. We need to get the guns off the street.
Mr. Speaker in any year, the average confiscation of guns is about 5-6 hundred. With a concerted effort and the resources over the last two weeks in West Kingston, the security Forces have recovered some 70 firearms.
This figure could have been more if the criminals were not forewarned of the impending incursion.
One of the new anti-crime bills - restricting bail for 60 days - is already enacted in Trinidad. Since the law has been in force, Trinidad’s crime rate has doubled. The question is, will it be any different here?
Jamaican laws already provide the police with a legal framework for operations. The difference in the proposed anti-crime laws is the removal of discretion of judges and parole boards, and presumption of guilt, rather than innocence, of suspects.
These new laws would erode liberties and undermine the basic tenets of law, that many before us sacrificed their lives to win. Most seriously, the proposed crime bills increase the power of the police force. I am uncomfortable with the passage of any law that may cause Jamaica to resemble a police state where checks on police behaviour are absent.
Passing pieces of legislation to fight crime will not, by themselves, prevent or reduce crime. Government has a responsibility to build the support institutions to prevent and reduce crime.
In moving forward:
- The Justice Reform agenda which went through wide consultation must be implemented.
- We must strengthen checks on the behaviour of the security forces, such as access to attorneys, discretion of judges, and independent investigative bodies with the integrity and resources to be credible.
- We must immediately provide the police with the resources to implement the existing Police Constabulary Force Act, which allows them to arrest and detain, while building alliances with the law-abiding citizens.
- We must institute measures to improve their investigative capacity.
- We must set out a national plan for addressing crime, implementing previous recommendations such as:
Ø the reintegrating of garrison communities into the rest of
the society;
Ø recovering guns and ammunition already in Jamaica, and preventing guns and ammunition from entering our country;
Ø setting up systems by which young people gain skills and earn an income;
Ø building trust between the wider society and the police, enabling the police to access the information needed to solve crime;
Ø Putting offenders before the courts in a timely manner;
Ø Differentiating crimes – getting rid of the sledge hammer approach;
Ø Reducing overcrowding and improving the conditions in lock-ups.
This Opposition will always support legislation and policies which seek to improve the quality of life of our people. That is why we will continue to make meaningful recommendations to the government that will lead to the development of our people and our country.
That is why we continue to be critical of those actions which are opportunistic and partisan. We must reject policies and actions which put politics ahead of the people and are knee-jerk reactions to current problems.
I have already proposed in my contribution to the 2010 Budget Debate that discreet time should be set aside by this Parliament to consistently discuss and review the issue of crime. I am happy to see that the Gleaner has joined me in that call.
I again call on the Government to ensure that this matter is not treated as a popularity contest, but rather as a matter that is given the priority it deserves to ensure the safety of the Jamaican people as well as our visitors.
As I said to the PSOJ in 2006, we must overthrow the 'states-within-states' - the garrison states; because it is there that some oppressors of the poor find room to operate. I also said then that the dons might operate through garrisons, but they reside alongside the rich and powerful in our verdant hills. Recent events have confirmed this, as the security forces have sought alleged drug and gun-dealers in both downtown and uptown communities.
If we are to truly tackle crime, we must be prepared to find the criminals wherever they are.
If they are in the inner city find them.
If they are in the boardrooms, find them.
If they are in Parliament, find them.
The fight against crime should not be selective, it must be applied with an even hand, and it must be consistent and sustained.
We must not fool ourselves and pretend that crime is limited to the inner-cities and similar neighbourhoods.
Let us find the will... let the chips fall where they may.
In Sunday’s edition of the Gleaner of June 6, Columnist Robert Buddan wrote “We must break the nexus, not just between state and criminals, whether they are geographically or non-geographically based, but between business and criminals as well; and between business, criminals and the state”.
He went on to sa,
“There is something called narco-capitalism.
It is where businesses like construction, real estate, law, banking, auto sales, and many others are interwoven with or front criminal enterprises….
Otherwise, our communities, downtown, uptown and mid-town, will be tainted.
Our uptown children will go to the same schools and we will sit in the same churches with criminals”.
Mr. Buddan is correct.
Change is difficult, but if we are going to change Jamaica we cannot only tackle crime in a piece-meal way, we cannot take away the rights of some while others are protected.
It is about all of us: politicians, business community, the church, the media and civil society – all of us finding the will to stand up for what is right and just not what is convenient and expedient.
In attempting to find solutions to the spiraling crime wave, we must ensure that the measures we take do not result in some citizens feeling that the state is their enemy.
Our action should not cause some to resent the security forces thereby widen the divide between them and the communities and people they are sworn to protect.
This will not help. It will not fix Jamaica.
Mr. Speaker, I believe that together we can fix the torn fabric of our society piece by piece and stitch by stitch.
But if the threads are weak and the stitching are untidy, or as we would say “chaka chaka”, the fabric will not hold together and things will just fall apart. Our laws must be made of strong thread and must serve the best interests of our people.
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