Editorial | Listen to the lawyers

It is exceedingly rare in Jamaica for lawyers and high judicial officials to engage in public protests over questions of law and the doctrine of separation of powers. Fundamentally, there is confidence in the independence of the island’s judiciary.

Nonetheless, judiciary-related protests of national significance have now happened twice in less than a decade. Until this week’s silent demonstration by members of the Jamaican Bar Association (JAMBAR) outside the court buildings in downtown Kingston, the previous one was in 2018 when 97 judges, of all the tiers of the judiciary, descended the bench, and effectively shuttered their courts, in protest of Prime Minister Andrew Holness’ attempt to place the then new chief justice, Bryan Sykes, on probation ahead of his permanent appointment, while his performance was supposedly evaluated.

In a statement after an emergency meeting, the protesting judges warned that the prime minister’s move, if it stood, held “serious implications for the fundamental principles of the separation of powers and the independence of the judiciary”.

Sensibly, Dr Holness backed down.

Though related, the issues in Wednesday’s demonstration by lawyers are not quite the same as the principle that caused the judges to vacate their benches in 2018. But it is sufficiently a matter of concern for this newspaper to remind Justice Minister Delroy Chuck and the Cabinet of the Jamaican proverb of “tek sleep mark death”. Don’t overlook, or miss, a serious situation because of the perceived prevailing calm.

FEARS

In other words, notwithstanding that the government has the literal letter of the law on its side, there are fears that, with respect to how it insists that the minimum sentence for the illegal possession of firearms is applied, it may be skirting too closely to the perimeters of judicial discretion, if not independence.

Further, lawyers agree with Justice Sykes that the sentencing provision is acting as a disincentive for people to plead guilty for firearm offences, preferring to take their chances at trial. The chief justice has warned that this is eroding the on-time disposal of cases in the High Court division of the Gun Court, with the danger of pushing back into backlog.

This issue was given public focus earlier this month when, at a conference of Caribbean corrections services officials, Justice Sykes verbalised what the data in the annual court statistics had begun to show a slowdown in the resolution of Gun Court cases.

Up to now, over 84 per cent of the cases that go before the Gun Court are disposed of within the benchmarked 24-month timeframe. However, in 2025 the court’s clearance rate, the difference between new cases filed and those disposed of, fell 19 percentage points to 62.72 per cent. Only a fifth of cases end in convictions, either by way of guilty pleas or the accused being found guilty.

Under a four-year-old amendment to Jamaica’s gun law, illegal possession of a firearm brings a mandatory 15-year sentence. It doesn’t matter if it is a complete firearm or part of one, in the possession of the accused, or the circumstances of the event. Possession of an imitation firearm carries the same sentence as a real one.

TAKE THEIR CHANCES

Justice Sykes told the correctional conference that the law had incentivised people charged with gun crimes to take their chances at trial rather than plead guilty.

“When one out of every five charges result in a conviction, the ‘deterrent effect’ of the court is significantly weakened,” the Supreme Court’s statistical report said. “The conviction rate suggests that defendants may feel they have an 80 per cent chance of walking free if they go to trial.”

Despite the low conviction rate for gun crimes, the government has framed the sentence regime as part of its tough-on-crime posture, which, according to Mr Chuck, had contributed significantly to the sharp decline in the island’s murder rate. However, lawyers have dismissed that argument as a limited or frivolous analysis of what affects crime reduction. They have focused on the bigger picture, the removal of discretion from judges and the potential for gun cases to clog the court system again.

“It cannot be a Cinderella approach of one size fits all,” attorney Peter Champagnie, a well-known attorney and one of the protesters, said in relation to the sentencing regime.

Tenneshia Watkins, the JAMBAR president, complained that “mandatory minimum sentences ... have taken away the discretion of the judge totally”. Protesters argued that judges were versed in the application of appropriate sentences and placards at the demonstration stressed strong gun laws and “fair sentencing can co-exist”.

Very likely the government will hang on to the 2023 ruling by the Privy Council in the case of Tafari Watson, who, as a 17-year-old, received a mandatory 15-year jail term under the Offences Against the Person Act for a shooting committed when he was 16. The Privy Council declined to strike down the section of the Offences Against the Person Act (OAPA) with the minimum sentencing provision.

Nonetheless, there is sufficient in that ruling, and in the logic of those who now complain, for the government to seriously rethink the minimum sentence in the firearms law.