Derek Achong

At­tor­ney Gen­er­al Faris Al-Rawi has promised that his of­fice would ro­bust­ly pur­sue an ap­pli­ca­tion for the Court of Ap­peal to ex­tend its tem­po­rary sus­pen­sion of its de­ci­sion to rule that leg­is­la­tion, bar­ring judges from con­sid­er­ing bail for per­sons charged with mur­der, is un­con­sti­tu­tion­al. 

Speak­ing at a vir­tu­al press con­fer­ence, yes­ter­day morn­ing, Al-Rawi stat­ed that af­ter Chief Jus­tice Ivor Archie and two of his col­leagues from the Court of Ap­peal de­liv­ered their judge­ment in the law­suit brought by for­mer mur­der ac­cused Ak­ili Charles on Thurs­day, he was con­tact­ed by the Of­fice of the Di­rec­tor of Pub­lic Pros­e­cu­tions (DPP) and the T&T Po­lice Ser­vice (TTPS) over con­cerns they had with the pos­si­ble im­me­di­ate ef­fect of the case. 

Al-Rawi said both en­ti­ties were con­cerned with hav­ing to re­spond to an avalanche of bail ap­pli­ca­tions from the ap­prox­i­mate­ly 1,200 per­sons that are cur­rent­ly on re­mand for mur­der. 

“The lo­gis­tics for an ap­pli­ca­tion for bail re­quires a num­ber of ad­min­is­tra­tive steps...These are com­pli­cat­ed and very im­por­tant steps for the State to be ready for,” Al-Rawi said. 

Al-Rawi stat­ed that he was par­tic­u­lar­ly con­cerned with the fact that if the judge­ment was not tem­porar­i­ly stayed un­til the Court of Ap­peal hears and de­ter­mines a sub­stan­tive ap­pli­ca­tion for sus­pen­sion on March 3, which will last un­til the ap­peal is de­ter­mined by the Privy Coun­cil,  per­sons on re­mand for mur­der would be able to im­me­di­ate­ly bring claims for com­pen­sa­tion based on breach­es of their con­sti­tu­tion­al rights. 

“The tax­pay­ers are go­ing to be in­vit­ed to stand the brunt of this if the law un­folds,” he said.

Stat­ing that this coun­try is at a “le­gal cross­road,” Al-Rawi not­ed that the fi­nal ap­peal in Charles’ case would be af­fect­ed by an out­stand­ing Privy Coun­cil judge­ment in a case in­volv­ing the manda­to­ry death penal­ty. 

In that case, brought by con­vict­ed mur­der­er Jay Chan­dler, the Privy Coun­cil is con­sid­er­ing whether to re­verse its pre­vi­ous po­si­tion on the con­sti­tu­tion­al “sav­ing law” clause, which pre­vents leg­is­la­tion that ex­ist­ed pre-1976 from re­view even if such leg­is­la­tion is deemed to be un­con­sti­tu­tion­al. 

Al-Rawi not­ed that if the Privy Coun­cil were to up­hold the clause and dis­agree with the Court of Ap­peal over the ap­plic­a­bil­i­ty of the clause to le­gal pro­vi­sions for bail for mur­der, Charles’ case would be over­turned. 

“The AG’s Of­fice has draft­ed a num­ber of laws in the event that the Chan­dler case goes one way or the oth­er and has con­sid­ered fur­ther amend­ments to the Bail Act,” Al-Rawi said, as he not­ed that his of­fice was pre­pared for any even­tu­al­i­ty in both cas­es. 

De­spite sig­nalling his in­ten­tion to de­fend both cas­es be­fore this coun­try’s fi­nal ap­pel­late court, Al-Rawi not­ed that he was not crit­i­cis­ing the Court of Ap­peal’s judge­ment in Charles’ land­mark case. 

“I make no com­plaint or crit­i­cism of the de­ci­sion of the Court of Ap­peal as it has al­lowed us to move to the Privy Coun­cil to set­tle the law,” he said. 

Al-Rawi al­so men­tioned that for­mer at­tor­ney gen­er­al Anand Ram­lo­gan, SC, pur­sued the case on Charles be­half al­though he (Ram­lo­gan) pi­lot­ed sev­er­al amend­ments to the Bail Act which re­moved ju­di­cial dis­cre­tion to grant bail for less­er vi­o­lent crim­i­nal of­fences. 

“Please un­der­stand I make no com­plaint of Mr Ram­lo­gan as an at­tor­ney-at-law car­ry­ing out his du­ties for his client. In­deed the law of­ten changes and what is con­sid­ered to be law to­day can change be­cause of the liv­ing op­er­a­tion of the Con­sti­tu­tion,” he said. 

Con­tact­ed yes­ter­day, act­ing Po­lice Com­mis­sion­er Mc­Don­ald Ja­cob said that he did not com­ment ex­ten­sive­ly on the pos­si­ble neg­a­tive ef­fect of the judge­ment as it is still un­der ap­peal. 

“I don’t want us to blow things out of pro­por­tion while things are still pend­ing be­fore the court,” Ja­cob said. 

How­ev­er, he said that the TTPS was re­lieved that the Court of Ap­peal grant­ed a tem­po­rary sus­pen­sion and will con­sid­er ex­tend­ing it as he claimed that with­out such a move his or­gan­i­sa­tion would be put un­der pres­sure to re­spond to hun­dreds of bail ap­pli­ca­tions. 

“I am of the strong opin­ion that if it was done im­me­di­ate­ly we may have had some sig­nif­i­cant con­cerns but now we can pre­pare our­selves for it,” he said.

He said that the TTPS was es­pe­cial­ly con­cerned about the ef­fect on the safe­ty of key wit­ness­es but ex­pressed hope that if the case is up­held by the Privy Coun­cil, lo­cal ju­di­cial of­fi­cers would be still cau­tious in grant­i­ng bail. 

“We don’t ex­pect the court to grant bail once we can put for­ward the nec­es­sary case to demon­strate there are per­sons who are at risk out there,” Ja­cob said. 

He said that even if the case was even­tu­al­ly dis­missed, it would still help im­prove the ef­fi­cien­cy of the TTPS’s pros­e­cu­to­r­i­al arm in terms of col­lect­ing crim­i­nal record in­for­ma­tion and gen­er­al case man­age­ment. 

“The pos­i­tive is that know­ing this may be a pos­si­bil­i­ty it would force us to en­sure we get our things or­gan­ised,” he said. 

In its judge­ment de­liv­ered on Thurs­day, CJ Archie and Ap­pel­late Judges Mi­ra Dean-Ar­mor­er and Mal­colm Holdip ruled that Sec­tion 5(1) of the Bail Act of 1994, which pre­clud­ed the grant of bail for per­sons ac­cused of mur­der, is in­con­sis­tent with the Con­sti­tu­tion and should be struck down. 

The ap­peal pan­el ruled that the seg­ment of the leg­is­la­tion was not rea­son­ably jus­ti­fi­able in a so­ci­ety that is con­cerned about the rights and free­doms of the in­di­vid­ual. 

“The unan­i­mous view of this pan­el is that, by re­mov­ing the ju­ris­dic­tion of High Court Judges to grant bail to per­sons charged with mur­der, sec­tion 5 has tres­passed on a core ju­di­cial func­tion,” CJ Archie, who wrote the judge­ment, said.

CJ Archie al­so sought to ad­dress ex­pect­ed pub­lic out­cry over the de­ci­sion. 

“While it is quite un­der­stand­able that not every­one will agree with de­ci­sions on bail by the courts (whether in a mur­der case or any oth­er case), re­moval of the dis­cre­tion is not a so­lu­tion,” he said. 

“It is ac­tu­al­ly like­ly to cre­ate in­jus­tice to ac­cused per­sons in some in­stances and, in any event, cre­ates a trou­bling prece­dent for in­ter­fer­ence with ju­di­cial pow­ers to solve a prob­lem that, par­tic­u­lar­ly in the case of mur­der, has not been proven to ex­ist,” he added. 

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