Ministry of Home Affairs’ attack on the courts unjustified

Dear Editor,
I am responding to an article captioned ‘Jamaicans fail to show for drug trial after granted bail —Home Affairs Ministry lambastes courts’ contained on page 3 of the Stabroek News dated March 27, 2009.

The ministry’s attack upon the courts is totally unjustified. The courts do not exist to help the police, they are there to ensure that accused persons are given a fair trial within a reasonable time. The concept of separation of powers seems lost on the ministry. The court has to be impartial and must never be thought of as an agent of the state in the administration of justice. The ministry seems to think that once a person is charged he is guilty. The law does not operate that way.

That the trial of the defendants in the instant case was not started for several months must be blamed on the omissions of those responsible for ensuring that persons charged are tried within a reasonable time − in this instance, the state.

Sufficient courts and magistrates should be a priority if persons are to be tried within a reasonable time.  Not only the ‘Drug’ Act recognizes this. The Constitution of Guyana also mandates trial within a reasonable time. The past and present judicial thinking is that reasonable time for a trial to begin in the Magistrate’s Court is three months. In the instant case the defendants were charged in April and in September their trial had still not commenced. In fact the case was postponed from July to November. It was in the intervening September that bail was granted.

My information is that it was not because the defendants wanted time to retain a lawyer that the trial did not begin in July, but because the Government Analyst’s report was not ready to be tendered in evidence by the prosecution. Assuming that they did want time to retain a lawyer, how could an adjournment to November, a period of four months, be justified?

What is to happen if a trial in a ‘drug’ case does not begin within a reasonable time? Should counsel for a defendant in such a case just sit back and do nothing to secure the pre-trial liberty of his client, especially when the law and constitution provide for a trial within a reasonable time? I submit the lawyer in the instant case did the right thing − approach the High Court for bail.

Given the circumstances in the case at hand, what is a judge to do in those circumstances other than grant bail, because there is no possibility of the trial commencing until November at the earliest − seven months after the first appearance in court.
In this case the Judge was right to say, I am granting bail because the failure to commence the trial within a reasonable time is both unconstitutional and amounts to ‘special reasons.’

Additionally, it has been argued that section 94 (which deals with the issue of bail, not section 93) does not prevent a judge from granting bail even though there are no special reasons. This argument has some degree of cogency because court is defined in Section 2 of the act as the “High Court.” Section 94, which deals with bail, refers to court and not Court.

A judge of the High Court has an inherent and statutory discretion to grant bail which cannot be curtailed by statute since it relates to the liberty of the subject, which is a core function of the High Court and is necessary to prevent an injustice, which was apparent because of the unwarranted delay on the part of the prosecution and the indulgence of the Magistrate adjourning the case until November, assuming the defendants wanted time to retain a lawyer. If in fact the defendants wanted time in July to retain a lawyer, not more than two weeks should have been allowed.

The presumption of innocence is still law in Guyana and must be respected. That is why our system of trial is the best in the world. We inherited it from the British and it is noteworthy that it prevails in every Commonwealth country.

Government ministries must not ever attack our judges on such a baseless foundation. Our judges are over-burdened and work hard. They must be left alone to administer the law to ensure that justice prevails.
Yours faithfully,
M Bacchus