Dou­glas Mendes

I took the time to read the de­bates in Par­lia­ment on the amend­ment to the Bail Act. I could not help but mar­vel at the cav­a­lier ease with which the right to bail was whit­tled down.

The amend­ment was passed unan­i­mous­ly in the House and re­ceived the votes of all but three sen­a­tors.

All those who spoke in favour dis­played a keen ap­pre­ci­a­tion that the bill would un­der­mine a fun­da­men­tal con­sti­tu­tion­al right and that "just cause" was ac­cord­ing­ly need­ed.

The Op­po­si­tion ap­peared in the ear­ly stages to be siz­ing up to vote against the bill. Rep­re­sen­ta­tive Im­bert re­hearsed all the rea­sons the au­to­mat­ic de­nial of bail to a per­son not yet con­vict­ed of any of­fence was con­trary to the most ba­sic prin­ci­ples un­der­pin­ning our crim­i­nal jus­tice sys­tem. He de­scribed the bill as a po­lit­i­cal stunt, ex­e­cut­ed in an elec­tion year, de­signed to ap­pease an elec­torate trau­ma­tised by ris­ing crime. Then, with­out fur­ther ex­pla­na­tion, the Op­po­si­tion ca­pit­u­lat­ed when the bill was read for the third time.

Lib­er­ty is the most pre­cious of rights. We can on­ly be de­prived of it if con­vict­ed of a crim­i­nal of­fence, af­ter a tri­al be­fore an in­de­pen­dent and im­par­tial tri­bunal, af­ter be­ing af­ford­ed an op­por­tu­ni­ty to mount a de­fence and af­ter proof of guilt be­yond a rea­son­able doubt. The po­lice of­fi­cer who in­ves­ti­gates and lays a crim­i­nal charge is patent­ly nei­ther in­de­pen­dent nor im­par­tial. You can­not be judge in your own cause.

Con­sis­tent with these pro­tec­tions is the con­sti­tu­tion­al right to be re­leased on bail pend­ing tri­al. To be sure, bail may be de­nied if it can be es­tab­lished that the ac­cused may in­ter­fere with a wit­ness or com­mit an­oth­er of­fence while on bail. But, ev­i­dence must be ad­duced to jus­ti­fy pre-tri­al de­ten­tion and the de­ci­sion whether to refuse bail must be made by an in­de­pen­dent and im­par­tial ju­di­cial of­fi­cer.

The amend­ment to the Bail Act au­to­mat­i­cal­ly de­nies bail to two new cat­e­gories of ac­cused: any­one who is charged with com­mit­ting any of a list of of­fences with the aid of a firearm; and any­one who is charged with a firearm of­fence and is al­so on a pend­ing charge for one of the list of of­fences.

He may ap­ply for bail af­ter 120 days on­ly if by then the pros­e­cu­tion fails to lead any ev­i­dence in the case. And he may ap­ply for bail af­ter one year if the tri­al is not com­plet­ed by then. The ef­fect is that a per­son who has no pre­vi­ous con­vic­tions, and who is lat­er ac­quit­ted, is de­prived of his lib­er­ty for a com­pul­so­ry min­i­mum of 120 days. The de­ci­sion to im­prison the ac­cused is ef­fec­tive­ly made by the very po­lice of­fi­cer who in­ves­ti­gat­ed and laid the charge. The amend­ment there­fore im­pos­es the penal­ty of pre­tri­al de­ten­tion with­out the need to prove guilt, with­out the need to take ac­count of the ac­cused's de­fence and on the say-so of a po­lice of­fi­cer who, in law, is not im­par­tial.

The po­ten­tial for abuse by po­lice of­fi­cers with an axe to grind was recog­nised by all the ho­n­ourable leg­is­la­tors. Sen­a­tor Sturge cit­ed ex­am­ples of per­sons who were hauled be­fore the crim­i­nal courts when there was sim­ply in­suf­fi­cient ev­i­dence to jus­ti­fy the charge. They all there­fore ac­cept­ed they were leg­is­lat­ing for the re­al pos­si­bil­i­ty that in­no­cent peo­ple would be au­to­mat­i­cal­ly de­prived of their lib­er­ty for a long pe­ri­od of time, with­out any need for ac­tu­al proof that they might in­ter­fere with wit­ness­es or com­mit an­oth­er of­fence while out on bail. What there­fore con­sti­tut­ed "just cause" for this whol­ly un­sat­is­fac­to­ry state of af­fairs?

The sug­ges­tion made by Sen­a­tors Lal­la and Sturge that the 120 day com­pul­so­ry de­ten­tion pe­ri­od would re­lieve the po­lice of the bur­den of gath­er­ing ev­i­dence to jus­ti­fy the de­nial of bail, and al­low them to spend that time mar­shalling ev­i­dence to sub­stan­ti­ate the charge, can­not be tak­en as a se­ri­ous at­tempt to jus­ti­fy the vi­o­la­tion of con­sti­tu­tion­al rights. Sure­ly the po­lice can be ex­pect­ed to mul­ti­task.

The main jus­ti­fi­ca­tion giv­en was the high preva­lence of crimes com­mit­ted with the use of firearms and the de­ter­rent ef­fect of lock­ing away al­leged per­pe­tra­tors on the mere ac­cu­sa­tion of a firearms re­lat­ed of­fence. As the at­tor­ney gen­er­al put it: "The Gov­ern­ment needs to send a strong warn­ing to mem­bers in so­ci­ety who may be con­sid­er­ing... us­ing il­le­gal firearms, that they would face harsh con­se­quences for their ac­tions... We must strike fear in the hearts of per­sons who con­tem­plate the com­mis­sion of crimes."

In oth­er words, the lib­er­ty of un-con­vict­ed and pos­si­bly in­no­cent peo­ple is to be sac­ri­ficed for the greater good.

Tak­en to its log­i­cal con­clu­sion, deny­ing bail could then be jus­ti­fied in re­la­tion to any of­fence which is con­sid­ered to be preva­lent. Why not de­ny bail to any­one charged with cor­rup­tion or do­mes­tic vi­o­lence? If the at­tor­ney gen­er­al's ar­gu­ment were sound, there would be very lit­tle left of the con­sti­tu­tion­al right to bail.

Min­is­ter Ra­mad­har brought his 're­al life' ex­pe­ri­ence as a crim­i­nal bar­ris­ter to bear on the sub­ject. He re­ferred to in­stances where per­sons on bail went on to com­mit oth­er of­fences. No doubt many such cas­es can be point­ed to. But ab­sent from his con­tri­bu­tion was any sta­tis­ti­cal analy­sis of the preva­lence of this phe­nom­e­non. Sure­ly con­sti­tu­tion­al amend­ments can­not be based on un­sci­en­tif­ic, anec­do­tal rec­ol­lec­tions. And im­plic­it in his sub­mis­sion was the no­tion that po­ten­tial­ly in­no­cent per­sons were to pay for the fact that oth­ers have abused the right to bail in the past.

What was most re­veal­ing was the min­is­ter's dis­clo­sure that the gen­e­sis of the amend­ment was a re­quest from the po­lice them­selves. Ac­cord­ing to him, "But if they, who are giv­en the sa­cred re­spon­si­bil­i­ty to pro­tect us, tell us they need this tool, it makes sense, we are du­ty-bound to do it."

But then who will guard us from the guards? That is what the ju­di­cia­ry is there for. The amend­ment re­moves this im­por­tant safe­guard. The Law As­so­ci­a­tion was clear­ly right to call for the re­peal of this fur­ther as­sault on our fun­da­men­tal rights.