Bail Bill worries Criminal Bar
By Jada Loutoo Thursday, March 14 2013
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THE CRIMINAL BAR Association has joined in the chorus of concerns about proposed legal initiatives aimed at addressing spiraling crime.
On Tuesday, the Law Association said it was concerned about initiatives contained in the Bail (Amendment) Bill, the Criminal Procedure (Amendment) Bill and the Defence (Amendment) Bill.
The Criminal Bar Association was also asked to comment on the various pieces of legislation and in a letter sent to the Attorney General, and the Ministers of Justice, Legal Affairs and National Security, it spoke of the ‘grave concerns’ it had concerning the Bail (Amendment) Bill and the Criminal Procedure (Amendment) Bill
According to the letter, a copy of which Newsday obtained, the association’s executive and members said the proposed legislation appeared to be ‘fast track’ legislation which had the potential to erode constitutional rights of citizens.
“We are of the firm view that not simply because there are sufficient numbers in Parliament to avoid constitutional protections by including the words, “And whereas it is necessary and
expedient that the provisions of this Act shall have effect even though inconsistent
with sections 4 and 5 of the Constitution ..in the preamble of any Act should this
be done easily and regularly,” the CBA said.
The association advised Government to take steps to ensure that the legislation, when passed, will not be met with a plethora of legal challenges in the courts.
The association referred the Government to authorities on ‘fast track’ legislation. As it spoke of its concerns with the Bail (Amendment) Bill, the CBA said it was alarming to note the number of proposed amendments to Act.
“These proposed amendments appear to be piecemeal and indeed inconsistent in policy with other pieces of legislation dealing with the administration of criminal justice.”
The CBA said it was disheartening that it appeared that the immediate response to the crime- wave was the introduction of new legislation.
“Legislative packages have come and gone with little impact,” the CBA noted. “Our members are not simply practitioners but we are citizens of this country and have a vested interest in ensuring that laws and rights are upheld and that the system of justice functions well,” the association said in its letter.
It also stressed that it was unable to support the proposed amendments to the Bail Bill and asked that consideration be given to national consultation. Consultation has also been proposed for the prospect of abolishing jury trials before the Criminal Procedure (Amendment) Bill is placed before Parliament.
In its letter, the CBA pointed to several cases in which they were involved to illustrate the possible injustices which may occur if the legislation proposed was enacted.
“How will the deprivation of bail to these offenders impact upon the purported aim of this Bill which is to curb the incidence of violent crimes? It also appears that despite murder being on the rise, it is now by its inclusion in the First Schedule to be a bailable offence after one hundred
and twenty days. From the above it seems that the Bill is disproportionate, unjustified and
inappropriate in terms of what it wishes to achieve,” the CBA noted.
The association also pointed out that under the current legislation, recidivism was already dealt with. “Parliament must be well aware that exhibits may take up to three years to be returned from the Forensic Science Centre. It follows that Parliament would be aware that in many of the cases where exhibits are required to be analysed there is no hope of any evidence being led within the time period set.”
The CBA warned about possible manipulation of the process of the court and the already overburdened Judiciary.
“We strongly recommend that first offenders for the offences set out in the Schedule of the Bill with the exception of murder and treason continue to retain their right to bail and their access to the courts.”
The association also noted that its members were divided on the issue as to whether jury trials should be abolished and recommended national consultation.