The Jeff Cumberbatch Column – A Disproportionate Reaction?
The Government’s regulatory interest in community safety can, in appropriate circumstances, outweigh an individual’s liberty interest. –US v Salerno 
I suppose that one rational response by the current governing administration to a query by an individual charged with one of the offences stipulated under the amended Bail Act and thereby suffering a loss of pre-trial liberty, as to the reason for its draconian nature, could very well be, “Well, you and your ilk left us with little choice, didn’t you?” Bizarrely enough, treason and high treason are included among the offences, even though such charges are extremely rare.
With its pride deeply stung by an unacceptable rate of the murders of young men through the use of unlicensed firearms since its assumption of the reins of office; a phenomenon that culminated in the tipping point recently of the reckless Sheraton assassination, it could be reasonably expected that any administration would have reacted similarly.
For, argue as cogently we might that crime should not be politicized, in that no government can prevent someone who is hell-bent of taking the life of another from doing so, it also bears reminder, as I quoted in an epigraph to my column two weeks ago, “government’s first duty and highest obligation is public safety”. Hence, any sense of general civic insecurity will most likely redound to the disbenefit of the incumbent administration. And that is not A Very Good Thing, politically speaking.
So it was that last week, the current governing administration took to Parliament, for passage into legislation, a Bill to amend the Bail Act, Cap 122A. Mindful that the provisions of the Bill might conceivably infringe the Constitution, the preamble to the Bill read, inter alia, that it was to be enacted “in accordance with the provisions of section 49 of the Constitution”; namely, first, that Parliament may alter an aspect of Chapter III of the Constitution -the local Bill of Rights- by an Act of Parliament passed by both Houses, that is supported by the votes of not less than two-thirds of all the members of each House, and, second, that an Act of Parliament shall not be construed as altering the Constitution unless it is stated in the Act that it is an Act for that purpose. The Act expressly seeks to alter section 13 (3) of the Constitution, the guarantee of the right to personal liberty, that provides as follows-
Any person who is arrested or detained-
- (a) for the purpose of bringing him before a court in execution of the order of a court; or
(b) upon reasonable suspicion of his having committed or being about to commit a criminal offence, and who is not released, shall be brought before a court as soon as is reasonably practicable; and if any person arrested or detained upon reasonable suspicion of his having committed or being about to commit a criminal offence is not tried within a reasonable time, then, without prejudice to any further proceedings which may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial.
My Constitutional law professor, the late AR Carnegie, was given to arguing that there were in fact two meanings of the Constitution; that with the capital “C” referring to the text of the document, while that with the lower case “c” referred to all the practices, understandings and conventions that regulated the governance of the state.
That distinction may be relevant here. So that while it may be argued that the amendment is not un-Constitutional, because of the terms and mode of its enactment, one may nevertheless contend that it may be extra-constitutional if it offends certain well-established understandings of the compact of governance between the citizen and the state. Not of course, that this will suffice to invalidate the statute in a court of law, but it should at least require further enquiry as to whether any established assault by it on the liberty of the subject is morally justifiable.
Clearly, there is much wrong at first blush with a statute that mandates such a substantial deprivation of an individual’s liberty on a bare assertion. The Bill itself at least acknowledges its infringement of the guarantee of personal liberty, but it also arguably drives a ZR through the principle of the presumption of innocence, that golden metwand of the criminal law, as it has been described. In addition, by displacing the discretion of the judicial officer of whether or not to grant bail to an accused person in a particular case, it might have blurred the separation of powers, a doctrine that forms an integral part of our constitution, even though it does not find expression anywhere in our Constitutional text.
The draconian nature of this legislation does indeed merit further inquiry, although it might be justified if it is perceived to be a proportionate response to the evil that it seeks to eradicate, so long as it employs the least invasive means of infringing the fundamental right in order to do so In other words, the infringement(s) of fundamental rights may be justified if effected in pursuit of a nobler objective and the means of infringement employed are minimally invasive of those rights.
The clear objective of the legislation is to curb the present scourge of gun violence and mayhem, in itself a warranted and unobjectionable ideal. In this context though, I would be happier, as a liberal skeptic, to have been provided with some empirical evidence of the incidence of bailed reoffenders in the area of gun crimes. Three or four instances do not necessarily provide cogent evidence of a pattern sufficient to justify the annulment of a right so fundamental to the rule of law.
Is the law minimally invasive of the guaranteed rights? Ostensibly, it appears to place the acknowledged sloth of our local court system on the shoulders of the accused, by precluding an application for bail “unless a period of 24 months has expired after that person was charged”, although there are stipulated exceptions. The question arises whether these exceptions are sufficient to soften morally the plain infringement of the rule of law. Some might still consider this period too long by far and thus too textually invasive of the presumption of innocence to be deemed constitutionally pukka.