Sturge: Amendment needed to correct flaws in law

DA­REECE PO­LO

Se­nior Re­porter

da­reece.po­[email protected]

De­spite calls from the Op­po­si­tion for broad­er con­sul­ta­tion, the Gov­ern­ment says it is mov­ing ahead with amend­ments to the Bail Act, in­sist­ing the changes are nec­es­sary to pro­tect the in­tegri­ty of the crim­i­nal jus­tice sys­tem.

De­fence Min­is­ter Wayne Sturge yes­ter­day made it clear there would be no con­sul­ta­tions with the Law As­so­ci­a­tion and no re­fer­ral of the bill to a Joint Se­lect Com­mit­tee.

Sturge told the Sen­ate the amend­ments are aimed at fix­ing what he de­scribed as a dan­ger­ous loop­hole cre­at­ed by the 2024 Bail Amend­ment Act, one he said has al­lowed ac­cused mur­der­ers to ap­ply for bail with­out prov­ing ex­cep­tion­al cir­cum­stances.

He said the gap in the law had trig­gered a surge in bail ap­pli­ca­tions and pro­duced con­flict­ing ju­di­cial in­ter­pre­ta­tions, un­der­min­ing con­sis­ten­cy in the ad­min­is­tra­tion of jus­tice.

The min­is­ter re­ject­ed Op­po­si­tion calls for fur­ther scruti­ny, ar­gu­ing the leg­is­la­tion was straight­for­ward and tech­ni­cal in na­ture.

“So, no, we did not con­sult the Law As­so­ci­a­tion, and no, we do not in­tend to in the very near fu­ture ... There’s no need for a Joint Se­lect Com­mit­tee on ba­sic leg­is­la­tion. And in any event, should Sen­a­tor Bood­hu (tem­po­rary op­po­si­tion sen­a­tor San­jiv Bood­hu) raise it, let me say it in ad­vance, you don’t in­vite judges to sit on par­lia­men­tary com­mit­tees be­cause they’ll have to pro­nounce up­on the very thing that they were a par­ty to.”

The bill, on its sec­ond read­ing in the Sen­ate, seeks to har­monise the stan­dards gov­ern­ing lib­er­ty in cap­i­tal cas­es, while al­so ex­pand­ing the pow­ers of ju­di­cial of­fi­cers to in­ter­ro­gate the source of bail funds.

At the cen­tre of the pro­posed changes is a bid to cor­rect what Sturge de­scribed as a “la­cu­na” in Sec­tion 5 of the Act, which emerged af­ter the 2024 amend­ments. Un­der the cur­rent frame­work, per­sons charged with mur­der are gen­er­al­ly re­quired to demon­strate “ex­cep­tion­al cir­cum­stances” to qual­i­fy for bail. How­ev­er, the Gov­ern­ment ar­gues that Sec­tion 5(5) cre­at­ed an un­in­tend­ed sec­ond regime, al­low­ing ac­cused peo­ple to ap­ply for bail if ev­i­dence was not tak­en with­in 180 days, or if a tri­al was not com­plet­ed with­in one year, with­out ex­press­ly link­ing that ap­pli­ca­tion to the ex­cep­tion­al cir­cum­stances test.

Clause 4 of the new bill seeks to elim­i­nate that in­con­sis­ten­cy, en­sur­ing that the high­er thresh­old for bail in mur­der cas­es ap­plies uni­form­ly, re­gard­less of tri­al de­lays.

Be­yond pro­ce­dur­al re­form, the leg­is­la­tion al­so tar­gets the fi­nan­cial prac­tices of or­gan­ised crime. Un­der the bill, courts would be re­quired to con­duct a bail source hear­ing in any case where an ac­cused per­son or sure­ty seeks to post $30,000 or more in cash, or presents a cer­ti­fied copy of a deed as se­cu­ri­ty.

Sturge ar­gued that the cur­rent sys­tem is be­ing ex­ploit­ed to “laun­der the pro­ceeds of il­lic­it ac­tiv­i­ty,” par­tic­u­lar­ly by or­gan­ised crim­i­nal net­works. He warned that gang lead­ers of­ten use large sums of cash, not de­rived from le­git­i­mate labour, to se­cure bail, re­duc­ing the in­cen­tive to com­ply with court con­di­tions.

He said that when such ac­cused per­sons are lat­er ac­quit­ted or killed, the re­turn of bail funds ef­fec­tive­ly in­jects “cleaned” crim­i­nal mon­ey back in­to the econ­o­my.

To ad­dress this, the bill ex­tends the au­thor­i­ty to scru­ti­nise the source of bail funds be­yond High Court judges to in­clude mas­ters and mag­is­trates.

Ac­knowl­edg­ing con­cerns about pri­va­cy and per­son­al safe­ty, the bill in­tro­duces a statu­to­ry du­ty of con­fi­den­tial­i­ty for court staff and ju­di­cial of­fi­cers. Bail source hear­ings may be held in-cam­era, with strict penal­ties rang­ing from $50,000-$100,000 in fines and im­pris­on­ment.

“To deal with the pri­va­cy con­cerns, the fact that we have cre­at­ed this of­fence and the pun­ish­ment is harsh, that in essence es­tab­lish­es a le­git­i­mate aim. It es­tab­lish­es the test of pro­por­tion­al­i­ty. It’s jus­ti­fied, it’s nec­es­sary so that per­sons with­in the crim­i­nal jus­tice sys­tem would think twice about ex­pos­ing per­sons’ fi­nan­cial in­for­ma­tion,” Sturge said.

How­ev­er, Op­po­si­tion Sen­a­tor Faris Al-Rawi re­ject­ed Gov­ern­ment’s pro­pos­als, de­scrib­ing key pro­vi­sions of the bill as poor­ly draft­ed and con­sti­tu­tion­al­ly risky.

“The law is so bad­ly draft­ed be­fore us. The min­is­ter has come to post bail, cash over $30,000 when the law con­flicts and says it must be un­der $10,000; not amend­ing that sec­tion, so you’re go­ing in­to con­fu­sion on im­plied re­peal,” he said.

“So con­de­scend­ing to the Op­po­si­tion and to oth­er per­sons in the op­po­si­tion, in­clud­ing the Law As­so­ci­a­tion. We must just take it at face val­ue. No sir, that is not the way law op­er­ates.”

Al-Rawi warned that sen­si­tive fi­nan­cial in­for­ma­tion could still en­ter the pub­lic do­main once judg­ments are pub­lished, de­spite pro­vi­sions for in-cam­era hear­ings, and said the Op­po­si­tion in­tends to bring amend­ments to ad­dress what he de­scribed as se­ri­ous de­fects in the leg­is­la­tion.

Mean­while, In­de­pen­dent Sen­a­tor An­tho­ny Vieira warned that while the bill pur­sues le­git­i­mate ob­jec­tives, it risks un­der­min­ing fun­da­men­tal rights in prac­tice.

He ar­gued that de­lays in ob­tain­ing bank records, deeds, or val­u­a­tions could re­sult in bail be­ing de­nied for rea­sons un­re­lat­ed to pub­lic safe­ty or flight risk.

“Bail may be de­nied not be­cause the ac­cused is dan­ger­ous, not be­cause the ac­cused is a flight risk, not be­cause the pros­e­cu­tion has shown just cause, but be­cause they could not as­sem­ble pa­per­work quick­ly enough. This is a se­ri­ous con­sti­tu­tion­al con­cern,” he said.

He warned the mea­sures would have lit­tle im­pact on the wealthy, while fur­ther mar­gin­al­is­ing the poor.