THE EDITOR, Sir:
RULES 15(1) and 15(2) of the Correctional Institution (Adult Correctional Centre) Rules 1991, read as follows:
'The Superintendent shall permit visits to the inmates in accordance with these Rules and shall have authority, if he suspects any visitor of trying to convey prohibited articles into or out of the adult correctional centre, to direct that such visitor be searched before admission to, and before departure from, the adult correctional centre.
'If any such visitor refuses to be searched before admission the adult correctional centre, the Superintendent may prevent him entering the adult correctional centre, and if he refuses to be searched before departure from such adult correctional centre, the Superintendent may cause such visitor to be forcibly detained for search.'
It could be argued that these Rules do not contravene the fundamental rights of freedom from search of the persons, guaranteed under section 19(1) of the Constitution, because of subsection 2 thereof, which upholds the validity of a law which is reasonably required in the interest of public safety and public order. These Rules apply to all persons including Lawyers (attorneys-at-law) who are visitors to the inmates of Correctional Institutions.
But it could be argued otherwise, that the Rules do not deal with public order. I am inclined to favour the former argument.
However, since these rules validly derogate from the fundamental right, they must be strictly obeyed and applied, having in mind, to quote Mrs. Jacqueline Samuels-Brown (attorney-at-law) '... the ideals of our legal system and Constitution...'
A SUSPICION AT TIME OF VISIT
The central requirement of the Rules is, that the Superintendent (or a person lawfully authorised by him) must have a suspicion at the time of the visit - a particular visitor not just all or a class of visitors, I repeat, that that particular visitor is trying to convey prohibited articles into or out of the Adult Correctional Centre. If he does not harbour such a suspicion at the time of his search, such a search would be unlawful and illegal.
It would not do to brand the Jamaica Legal profession as a bunch of lawyers determined to break the Law. This is defamation of the 'wickedest' kind. Please note that I am not trying to convey prohibited word into the English language!
CAVEAT - If the Superintendent, or a person lawfully authorised by him searches, he or she is protected. If any other person including Prison Officers or a member of the Jamaica Defence Force searches a person without such authority, then he or she would be in breach of the Constitution, and will be liable under the Constitution to pay compensation to the person unlawfully searched. - (Section 15(4) of the Constitution) because he or she must have detained the person in order to search him or her.
It is the same if the Officer searches in obedience to superior orders, and/or without any specific suspicion, but as a matter of routine. In all cases the Officer must harbour at the time of the search, a suspicion that the visitor is trying to convey, NOT merely intending to, but actually trying to convey a prohibited article.
My advice to lawyers is this. Ask the Prison Officer, before requesting admission, if he suspects that you are trying to convey a prohibited article into the Institution. If he says no, then any search would be unlawful and can legitimately be resisted. It is in such an event, that it can be asserted that there has been an actual or likely contravention of the client's fundamental right to adequate facilities for the preparation of his defence, and access to his chosen legal representative for the purpose of defending himself.
I am, etc.,
BERTHAN MACAULAY,
Q.C., M.A., LL.B
Attorney & Barrister-at-Law
Kingston
