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THE JUDICIARY IS NOT AN AUXILIARY OF THE HOME AFFAIRS MINISTRY

Apr 05, 2009 AFC Column, Features / Columnists

By Khemraj Ramjattan, Chairman of AFC

The Ministry of Home Affairs has an executive responsibility to provide assistance to the Police. But the Judiciary is not the Ministry of Home Affairs. It is highly unfortunate that the Ministry of Home Affairs has made such a public complaint against the Judiciary. This complaint seems to imply that the Police Force needs co-operative help from the Judiciary – help which the Judiciary cannot provide if it is to maintain its impartiality in matters criminal and its duty to apply the law.

The Ministry has attacked the High Court on the ground that the High Court has granted bail to two Jamaican Defendants who are summarily charged with the offence of Trafficking in Narcotics, without there being special reasons to be recorded in writing. The Ministry has even quoted a section of the Narcotics and Psychotropic Substances (Control) Act, which the Ministry has perceived to be relevant. The perception is erroneous. It is obvious that the Ministry has not carefully read the provisions of the Act; or, has been legally misadvised.

In that Act, there is a distinction between Court (spelt with a capital C) and court (spelt with a common c). Court spelt with a capital C means the High Court and court spelt with a common c means the Magistrate court. It is the Magistrate who has no jurisdiction to grant bail for certain narcotic offences in the absence of special reasons – not the High Court. The provision quoted by the Ministry of Home Affairs applies only to Magistrates and not to the High Court Judges. The Magistrate Court is a creature of statute and therefore its jurisdiction can be limited by statute. Not so with the High Court! The High Court is a creature of the Constitution and therefore its jurisdiction in relation to core functions cannot be limited by ordinary statute. It can be limited only by the Constitution itself. The liberty of the subject falls within those core functions.

In this case referred to by the Ministry of Home Affairs purporting to show that the High Court exceeded its jurisdiction, the circumstances do appear to justify the grant of bail. The Defendants on a summary charge of Trafficking in Narcotics were denied pre-trial liberty without commencement of the hearing, as I am informed, after several months. In the light of the Constitutional right of a presumption of innocence and the right to be tried within a reasonable time, the High Court appears to have acted quite properly in granting bail.

The complaint made by the Ministry of Home Affairs is obviously based on an ignorance of the doctrine of separation of powers and the role of the judiciary, one being a philosophical and the other an institutional pillar respectively of a normal democracy.
This complaint can only come from democratic-centralist upbringing, which does not permit an understanding that the Judiciary must never be an auxiliary of the most coercive organ of State – its Ministry of Home Affairs. A democratic-centralist, commandist approach is the tradition of authoritarian regimes, especially of the ilk of the former Soviet Union, which preached “socialist legality” as against the “rule of law” of liberal democracies.

I have noticed dangerous trends recently, which bespeak of this democratic backslide and a rollback of the rule of law. Torture by the coercive arm of the State these days is said to be just “roughing up”. So says a leading Minister who has impressed us all with, more than anything else, his desire of wanting to be the next Presidential Candidate.

But another recent statement, from a quarter I least expected, The Honourable Attorney General, indicating that instructions from him as chief legal adviser to the Government can be given to the Director of Public Prosecutions, is far graver.
I just hope that the DPP smiled away dismissively at this.

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