Bail laws too draconian?

A lot of things could happen when you are sleeping. A lot of things could happen to country when most of its citizens are asleep only to wake up to hear how the price of liberty is eternal vigilance, etc. I looked at the basic Bail Act (1994) in order to understand how far we have reached with recent bail legislation. Without persuasive arguments, it looks like creeping authoritarianism.

The 1994 Act stated that a court may grant bail to any person charged with any offence “other than murder, treason, piracy or hijacking or any offence for which death is the penalty fixed by law.” This Act goes on to list 14 other offences for which “the Court shall not grant bail” to a person who is charged with any of these 14 offences if he has been convicted on three occasions (in the last ten years) of any one or combination of these 14 offences.

Among the 14 “listed offences” are drug trafficking, possession and use of firearms or ammunition with intent to injure. The law gave a judge the discretion to deny bail if he was satisfied that the accused would fail to appear, or commit an offence, interfere with witnesses, or should be kept in custody for his own protection. The judge could deny bail if the police showed “practical difficulties” in obtaining sufficient information for prosecution (Section 6). However, in this circumstance it was not clear for how long the accused would remain without bail. The bail discretion of the court was guided by the seriousness of the offence, the character and “social ties” of the accused, etc. Looks reasonable.

How far have we come from the 1994 Act? The Anti-Gang Act (10 of 2011) and Bail Amendment Act (11 of 2011), each of five years duration, carried heavy jail terms. These laws brought a heavy hammer where, by 3/5 majority, the bail discretions of magistrates and judges were reduced. The argument was “criminal gang activity presents a danger to public order and safety and economic stability and has the potential to inflict social damage.”

The 2011 Anti-Gang Act states that a police officer may, without warrant, detain for a period not exceeding “seventy-two hours” a person whom he reasonably suspects of having committed an offence under this Act without charging him for the offence (Section 13) And so Section 6 of the 1994 Act was hereby operationalised by stating precisely the period of no bail detention.

Depending on reasons presented by a senior police officer, a magistrate may extend this “seventy hours detention” to “not more than one hundred and twenty four hours.” This expanded space and time in this Act allowed for the police to arrest and prosecute gangs and gang members. What happened? Any attempt to diminish judicial discretion or extend no bail detention should be presented with substantial data-driven arguments.

Bail Amendment Act (No 11 0f 2011) says “a court shall not grant bail to any person charged under the Anti-Gang Act.” And further if “no evidence is taken before the court within one hundred and twenty days of the charge, the person is entitled to apply to a judge for bail.” One hundred and twenty days without bail! It seems procedural justice was turned on its head. Anyhow, the police got a big chance to do their work. But what were the results? Bullying and bragging will not do. Neither will speculation about a man “shooting down 500 people, etc.”

The 2018 Bail Act passed in May 2018 with a 30-month sunset clause and widened definitions, came with 46 listed gang-related offences and some frightening jail sentences – 30, 25, 20 years, etc, and with previous reductions of judicial discretion.

Briefly, it states a police officer may arrest without warrant a person reasonably believed to be a gang leader, gang member, who have committed gang-related crime, or enter and search with warrant any house reasonably believed to harbour a gang leader, member or person believed to have committed a gang-related crime. Police may detain a person for 72 hours, then with "reasonable grounds" get a judge order for further detention. Here, the person may apply for bail.

These provisions have core constitutional implications which may be extended if, for example, there is strong evidence that these provisions brought significant results in detection, prosecution, etc, since 2018. Follow the science.

In fact, why were earlier well-stocked legislation not effective? Speculation and fear-mongering will not do. We should also be careful that judges are not made to appear unduly sidelined in matters of procedural justice and fundamental freedoms. The Attorney General should reflect.