[UPDATED] AG 'staggered' by Law Assn's stance on Bail Bill

Attorney General Faris Al-Rawi and former AG Ramesh Maharaj sharply differed over the Law Association’s (LATT) rejection of a bill to deny bail for 120 days for illegal possession of military-grade firearms. In November, the Senate passed the bill piloted by Al-Rawi, but it then stalled in the House of Representatives due to lack of opposition support.
A LATT statement on Sunday claimed the bill sacrifices key constitutional tenets by infringing the presumption of innocence, empowering the police to deprive people of liberty and breaching the doctrine of separation of powers, instead of tackling the root causes of crime.
Al-Rawi described LATT’s letter as “staggering” and “disappointing.” But Maharaj justified LATT’s fears over the Bail (Amendment) (No 2) Bill 2019. “The question of bail is a matter for the court, not the executive nor Parliament,” he told Newsday on Monday.
He said the TT Constitution, in Sections 4 and 5, says bail is a fundamental right, such that the court has the power to determine the right to bail. “So if you pass a law which takes away that right to bail, you are usurping the powers of the courts.”

LATT IS RIGHT
He said this violates the separation of powers between the judiciary, and the executive (government) and legislature (Parliament.) Maharaj said the Privy Council (in Mauritius v Khoyratty) said if Parliament removes the right to bail, this is a breach of the separation of powers and so is unconstitutional.
“I think the point the Law Association was making is that the Constitution of TT is premised on the doctrine of the separation of powers and the rule of law, and that Parliament cannot pass laws inconsistent with democracy.” He said Section 1 of the Constitution says TT is a democratic state and Section 3 says any law inconsistent with that principle is void.
Maharaj explained why LATT feared a police state. “What they are saying is that if Parliament and the executive deny people bail and do not resort to a court, that is really the beginning of a police state, because you have taken away the right to liberty, the right to enjoy a private and family life and the right to privacy.”

IT’S SCANDALOUS
But Al-Rawi told Newsday parts of the LATT’s letter were “scandalous.” He fully backed Commissioner of Police Gary Griffith’s stance on the bill.
The AG was disappointed in the LATT’s letter, which he said omits mention of key safeguards in the bill, notably section 5(7) A.
“That provision said every person before the courts has an absolute entitlement to approach the court in exceptional circumstances to demonstrate why they should have bail. That provision is therefore the key element in maintaining the supervision of the court.
“It is ridiculous for the Law Association to leave that out.”
Al-Rawi said this clause was a new improvement in the law.
“That never existed in our law previously. We borrowed from the US and UK and Canada to include that section.
“For the Law Association to omit reference to that, and worse yet, to go on to allege there is an ouster of the court’s jurisdiction, is staggering.”
He said in the bill, for the first time in TT, the court’s jurisdiction is not ousted. “It is scandalous that this would be left out (by LATT). There’s no way the court is being ousted.” The AG said the only exemptions from the court’s jurisdiction were the first schedule offences in the Bail Act, namely murder and other capital offences.

THERE ARE SAFEGUARDS
Al-Rawi listed two safeguards for charges of possession of automatic weapons. “The judgement of our Appeal Court in the Danielle St Omer case (2016) completely confirms that the Bail Act was subject to the Constitution and the only time you are treating with exclusion of bail is for murder and treason, etcetera.”
The second safeguard, he said, was the fact the bill referred to section 5(7)A. “It says for these matters, including possession of automatic weapons, you have the right to approach the court to demonstrate why exceptional circumstances exist for you to get bail.”
The AG said the LATT was “completely wrong” to say the bill has an ouster of the court’s jurisdiction, and worse yet to refer to the Mauritius ruling.
Al-Rawi said it is hard for TT to aspire to be like Singapore when the CoP and Government get condemned for taking a tough position on crime.
“I want to denounce the recommendation coming from the Law Association, because these fly in the face of the constitutionality which that law has. “Whoever wrote that release did not reflect on the Danielle Omer decision and section 5(7)A.” The AG concluded, “The last point I will make is that you have the right of appeal at all stages of the process.”