Some MPs said Monday that they expect the constitutionality of a section of a law they passed that day to be challenged in court.
The Witness (Special Measures) Bill, allows for the testimony of witnesses to be done remotely and for the identity of witnesses to be disguised.
Prime Minister Dr. Ralph Gonsalves, who piloted the bill, which also received Opposition support, said it will help in cases where witnesses feel threatened or intimidated.
He said that at the select committee stage, lawmakers had “a very lively debate” regarding whether it was constitutional for a provision under the law, to deprive defendants of the opportunity to cross-examine witnesses.
“And I think there was agreement across both sides of this Honourable House … [that] that provision passes constitutional muster,” said Gonsalves, who, like all the other persons who debated the bill, is a lawyer.
Opposition senator, Vynnette Frederick, said that Opposition lawmakers agree that the legislation is an important one.
“And we expect that the issue of constitutionality that was the substance of the lively debate will be tested before the court.
“We anticipate that some other practitioner will take the opportunity to test and see whether, constitutionally, the question that caused us quite a bit of to and fro, will be settled,” Frederick said.
“Mr. Speaker, I would not get into the minutiae of the argument, save and except to say, I look forward to no doubt, some practitioner taking up the issue. And I know that attorneys on both sides of the House would agree that it is a question that will be asked of the court,” she further said.
Sen. Linton Lewis, who is also an Opposition legislator, said:
“If we look at it very carefully, Mr. Speaker, the defendant will have some of his rights eroded, because the defendant will not be able now to have a matter held in court, live, where the press will be there, where the demeanour of the witness can be assessed, where in truth and in fact there appears to be transparency, where the public will be able to come and observe and where the public confidence and trust can be obtained as a result of being able to come and see our criminal justice system at work.
“Because of those issues, Mr. Speaker, we have to be very mindful in implementing the measure that we are very clear as to how they are to be implemented,” Lewis said.
And, Jomo Thomas, a senator on the Government side, lauded the Bill, saying, “I can tell you that sometimes witnesses may be quite concerned, when they have to give evidence.”
He said the special measures contained in the Bill “will go a long way to lift the quality of justice which we have, which would help to protect the community, which would help to protect the society, which would help to protect the witness, and it would not in any significant way assault the rights of the defendant, it would not affect the practise of fair trials.”
But Thomas, who is a member of the select committee on the Bill but missed the meeting when the clause was discussed, said: “I do not share the view expressed by some that the measure which prevents a defendants from cross-examining a witness — an important witness — does not fly in the face of Section 8.2 of the Constitution.
Thomas quoted Section 8.2 of the Constitution, which says, “Every person who is charged with a criminal offence […] shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before the court…”
“It seems to me that if the Constitution says to personally examine, or examination by legal counsel, that the option that we intend to take away will in essence fly in the face of 8.2.
“I know it will be challenged, I hope it will be challenged, and it would be good to have the court pronounced on this section of the law.”
Thomas suggested a way around the issues, saying, “… once the prosecution makes an assessment that there will be a witness who might present some problems — whether fear of seeing face-to-face, or some other forms of intimidation or threat, — particularly where that persons does not have a counsel of his own — the State should make provision to have that person have counsel immediately”.
He noted that the law says that the State can provide counsel, but added, “… the way the law says it is kind of nebulous, is not really clear”.
However, Gonsalves in response, noted once the law is passed, there is a presumption of constitutionality in its favour.
“And anybody who wishes to challenge any provision as not passing constitutional muster must first rebut that presumption on a balance of probabilities,” he said.
“And I do not see, given the overall care with which the section has been drafted that there could be such a successful challenge to the presumption of constitutionality,” the Prime Minister further stated.