Why are defence lawyers not exempted from curfew
THE EFFORTS to date by the Government to deal with the spread of the coronavirus among us have been commendable. However, it should always be mindful to guard against the perception of self-interest and the promotion of one class of persons over the interest of the most vulnerable among us whose constitutional rights are compromised.
This, of course, is in reference to the recent islandwide curfew order that was imposed under the Disaster Risk Management Act and in which, among others, parliamentarians and others were exempted.
In addressing the reasons behind parliamentarians being exempted, our prime minister used as an example, a Member of Parliament being called upon by his or her constituency to be present to give moral or material support in the case of victims in an emergency such as a fire.
There can be no doubt that, in the ordinary course of life, parliamentarians in Jamaica are expected to play many roles within their constituencies. These, however, are not ordinary times, in light of the contagion that we now face. Consequently, the allembracing function that a parliamentarian would ordinarily provide in any instance of an emergency in his or her constituency, for the moment, is best left up to essential service workers.
Whereas veterinarians are exempt under the curfew order, no such exemption exists for defence lawyers falling either under the category of duty counsel or legal aid. A situation such as this will easily provoke the satirist among us to conclude that the physical well-being of poodles and other pooches alike, belonging to the wealthy, is to be preserved by accessibility to veterinary services, islandwide curfew notwithstanding.
What of the accessibility of the ordinary Jamaican who is taken into custody from his or her home to a police station
‘Any person who is arrested or detained shall have the right – to communicate with and retain an Attorney-at-Law.’
during the operation of the curfew period, who would wish accessibility to legal representation? It may be timely at this juncture to be reminded of the Charter of Fundamental Rights and Freedom (Constitutional Amendment Act) 2011. Section 14(2) states: “any person who is arrested or detained shall have the right – to communicate with and retain an
Attorney-at-Law”.
During the operation of the curfew order, it is not far-fetched to envision a situation where a person is detained and the police are anxious to interview the person in the presence of his or her attorney-at-law, to quickly settle, for example, the question as to whether any prolonged detention is necessary. Indeed, the circumstances may extend to a situation where the person so detained falls within the susceptible group to contracting the coronavirus. The Government must be sensitive to this and act now to exempt defence lawyers under the curfew order.
Interestingly, whereas defence lawyers are not exempted under the curfew order, the judiciary and persons who are employed to the courts are exempted. While recognizing that persons have a right to defend themselves, it is impossible to imagine a situation where the administration of the criminal justice system at all levels could function without lawyers.
Jamaica, to a large extent, is still divided along rigid class barriers and, therefore, even with the best of intentions, actions taken or words said may be easily misinterpreted as a move towards maintaining the social divide within our class structure.
This is particularly so when, within this context, there can be no rational reason for exempting a certain class of persons under the curfew order while including others.
If we continue in this fashion, we run the risk of bringing to life and giving credence to George Orwell’s celebrated literary work Animal Farm (1945) in which the theme embodied therein was that all are equal but some are more equal than others.