Anthony Gifford, Contributor

The Government has introduced two measures to restrict the ability of the courts to grant bail to those accused of serious offences. One, the Bail (Amendment) Bill, provides that bail should be granted only if the accused person satisfies the court that bail should be granted. This alters the present position whereby an accused person is entitled to bail unless the court is satisfied that he might fail to surrender, or commit other offences, or interfere with witnesses. The change would apply to cases of murder, firearms, drug dealing, and a number of other serious offences.

This bill also provides for a right of appeal to the prosecution to a judge of the Court of Appeal, against a decision to grant bail. The hearing of such an appeal must commence within 72 hours from the decision, excluding weekends and public holidays.

The power to grant bail

These measures would retain the power to grant bail in the hands of the judiciary, and are not objectionable on constitutional grounds. They might make little difference in practice, since the experience of attorneys-at-law is that in cases of murder and firearms, it is an uphill and usually hopeless struggle to persuade the courts to grant bail.

The second measure, the Bail (Interim Provisions for Specified Offences) Bill, would provide that bail in murder and firearms cases could not be granted at all until a period of 60 days had passed from the date of charge.

The measure has been much criticised by the Jamaican Bar Association and other groups. The danger of it is that it allows the police to detain people for two months without there being any judicial scrutiny of the case. For one of the features of a bail application is that the prosecution is obliged to inform the court of the nature and strength of its case. If their case is weak, the arguments for granting bail are stronger. To deny the right to apply for bail is to give a licence for arbitrary detention.

The right to liberty

The Government has recognised that the measure contravenes the fundamental right to liberty granted by section 15 of the Constitution. That section includes a provision for an accused person to be brought before the court without delay and, if not tried within a reasonable time, to be released on bail. The Government is hoping that the bill will be supported by the votes of not less than two-thirds of the members of the Houses of Parliament. If that happens they assert, relying on section 50 of the Constitution, that the bill will prevail over the provisions of section 15.

However, there is a more fundamental objection. It is one of the foundations of a democratic society that there should be a separation of powers between the judiciary and the other branches, that is, the executive and the legis-lature. It is unconstitutional for the legislature to usurp a function which is intrinsically within the domain of the judiciary. The power to grant bail is just such a function.

Deeply entrenched

In 2002, an attempt was made in Mauritius to pass a law denying bail to persons accused of terrorism or drug offences. It was passed by the three-quarters majority of Parliament, which was required by the Mauritius Constitution in order to amend the fundamental rights provisions. But even so, the Supreme Court of Mauritius struck down the law because it violated the separation of powers, which was a deeply entrenched element of the Constitution. In 2006, the Privy Council agreed; the case is called The State v Khoyratty and can be downloaded from the Privy Council website.

Basic democratic principles

One judge, Lord Mance, said that "the new scheme would contradict the basic democratic principles of the rule of law and the separation of judicial and executive powers, which serve as a primary protection of individual liberty".

There are differences in detail between the Constitutions of Mauritius and Jamaica, but not of principle. Both are democratic states which respect the rule of law. Our government would be well advised to heed the Mauritius example and withdraw this manifestly unconstitutional proposal.

Lord Anthony Gifford, QC , is an attorney-at-law.