Revisit Gun Court law

JOURNALISTS AND media organisations are right that the clause in the legislation that, by default, makes cases before the Gun Court secret, should be amended.

For while judges may to elasticise the law, allowing for the presence in courtrooms of people who aren’t directly involved in the proceedings, the rule, on its face, runs counter to the principle of open justice, and therefore offends the right to citizens to have their trials in public. In any event, judges, for the past half century, have tended to dutifully accept the default rather than expand their boundaries.

So, if Parliament doesn’t act soon, The Gleaner encourages interested parties to undertake constitutional challenge of Section 13 of the Gun Court Act, revisiting one of the issues of the case of Hinds et al of 1975, in which the Judicial Committee of the Privy Council held the Gun Court, as it was then constituted, to be unconstitutional. The law lords at the time displayed grave disquiet with default in-camera hearings, if the rule derogated from the discretion of judges so as to undermine the separation of powers between the legislature and the judiciary.

Established in 1974, the Gun Court, where judges sit without juries, was among the responses by Michael Manley’s government to Jamaica’s spiralling gun crimes. The new court was supposed to hear cases swiftly and people convicted of a wide range of gun offences were subject to mandatory indefinite detention.

However, the Privy Council held that the court, as established, outside the framework of the Supreme Court, was unconstitutional. So too were its sentencing arrangements.

The law was amended in the wake of the ruling.

REIGNITED

Now, decades later, controversy over the Gun Court’s in-camera hearings was reignited by the decision a fortnight ago by Justice Vinette Graham-Allen to exclude reporters and the family of Jolyan Silvera, a former opposition People’s National Party (PNP) parliamentarian accused of murdering his wife, from the first hearing of his case.

“One has to exercise discretion in each case,” Justice Graham-Allen said. She suggested that Mr Silvera’s family and the press may be allowed to observe the case in the future, but didn’t go into the reason for her decision.

However, in the face of a broad outcry, the Court Administration Division (CAD), the administrative arm of the judiciary, explained that the indictment against Mr Silvera was preferred in the Circuit Division of the Gun Court and brought under the Firearms Act, thus limiting the public’s access to the court, but for accused, lawyers, witnesses and other court functionaries.

Despite the restrictions, the law allows access to “such other persons as the court may specifically authorise to be present”.

Justice Graham-Allen could have acted differently. The failure to do so in this instance, this newspaper believes, was an error.

CAD, however, noted that on the basis of the law’s provisions “judges presiding in the Gun Court have excluded members of the public from being inside the court when offences under the Gun Court Act are being addressed”.

In other words, the restrictive interpretation of the Section 13 of the Gun Court Act has been their default position for 50 years.

CAD explained: “The judge is required to give effect to the policy reflected in the statute which is to create an environment in which witnesses could attend and participate in the proceedings without their identities being made public or any information being made public that would enable them to be identified.”

But, as has been demonstrated in several cases recently – including gang trials at which the press was present – many of the security concerns that underpin some of the provisions of the Gun Court Act are not as relevant today as a half century ago. People, for instance, can testify electronically, including from outside Jamaica.

OPEN JUSTICE

Moreover, in a low-trust society, where citizens’ confidence in the institutions of the State, including the courts, is weak, sustaining the ideal of open justice is important, especially when influential people, or those who hold, or have held, high office are involved.

Indeed, it is this value of transparency that the court understood when it insisted that several senior officials of the PNP, including the former prime minister, Portia Simpson Miller, should be questioned in open court, under a mutual legal assistance treaty, when the Dutch government was probing the trading company Trafigura’s activities in Jamaica. It was only Ms Simpson Miller’s illness that eventually shielded from that requirement. And none of the persons who were subject to the order was accused of, or charged with, a crime.

The more important consideration is, in this newspaper view, the obligation to Jamaica’s Constitution, which at Section 16 (3) says: “All proceedings of every court and proceedings relating to the determination of the existence or the extent of a person’s civil rights or obligations before any court or other authority, including the announcement of the decision of the court or authority, shall be held in public.”

The judge, of course, can exclude persons in the interest of justice, or if publicity might undermine public safety and public order. But that, on the basis of the constitution, ought to be the judge’s call, after taking into account all interests and consideration, not the automatic default position. If the State is inclined to have it otherwise, it ought to prove that the infringement is “demonstrably justified in a free and democratic society”.

That is why the Gun Court law should be changed to bring absolute clarity to the situation. If that doesn’t happen a legal challenge of the relevant section may be in order, which is unlikely to offend the spirit of the 1975 Privy Council ruling.

In the meantime, Chief Justice Bryan Sykes might consider issuing a formal reminder to all judges serving in the Gun Court of their discretion and powers.

The opinions on this page, except for The Editorial, do not necessarily reflect the opinions of The Gleaner.