Amendment of s.54 of the Child Justice Act of Saint Lucia
During this week, there has been much ado and debate both in and outside of the House of Parliament, about the Amendments to the Child Justice Act. In this Amendment, s.54 of the principal Act i.e., the Child Justice Act, has been amended by removing the sub-section which provides for a maximum of three-year sentence at a correctional facility if a child is found guilty of an offence. Under this Act, a child by the way is defined as anyone 18 years and below, but older than 12 years old.
The Amendment was to provide the court with a discretion to impose a sentence to a correctional facility that they deem fit for children who run afoul of the law.
Essentially, if a child committed any offence under our Laws prior to the Amendment of this Act, the maximum sentence they could receive is three years. It meant that, irrespective of what the crime was, the child would only be permitted to receive a maximum penalty of three years.
However, this Amendment, removed the maximum of three years, and permitted the Judge overseeing the case to determine the appropriate sentence.
Now, as productive and refreshing as the debate has been over the last few days- particularly in light of constant calls by the public for public officials to engage in less mépwi, in parliament and more constructive conversation, there have been some moments where the debate could benefit from more sober and deep reflections.
The underlying r’aison d’etre of the Amendment therefore seemed to guard and pre-empt the courts onslaught of striking down legislation in the Caribbean which seeks to remove the discretion of judges to determine sentences in criminal offences, as sentencing is a judicial function.
As such, in line with our separation of powers doctrine, the executive nor the legislature cannot exclusively seek to determine sentencing of minors or anyone. The underlying philosophy which I think is an apt one, is that Parliament, may not be well-placed or have the appropriate information to proscribe sentences on a case-by-case basis, as every case is different. Simply, the time must fit the crime and judges who will hear the matter are best placed to provide sentences.
Notwithstanding, Parliament’s ‘sovereignty’ as the branch which is responsible for passing laws for the peace, order and good government of the country pursuant to section 40 of the Constitution, Parliament is subject to the Constitution and cannot pass laws which contravene the Constitution. More particularly, Parliament cannot pass laws which contravene the separation of powers doctrine inherent in the Constitution. The seminal case of Hinds v. The Queen is instructive on this point! It does not mean that the courts are equally answerable to the Constitution, which they are!
In recent times, however, the courts have asserted their dominion, much to the displeasure of politicians, that sentencing cannot be given to the executive indirectly or directly. Without engaging in legal esotericism, if for example, the Parliament as has been done in Guyana in the past determined that, the penalty for smuggling could be determined by the Comptroller of Customs, then that would be a transfer of the judicial function to a member of the executive, which would be a violation of the separation of powers doctrine.
Similarly, the legislature or executive cannot provide indeterminate sentences which are left to them to decide. For example, if the executive or legislature, created a penalty as has been done in the past, during the Governor General’s pleasure, with the length of the actual sentence to be determined by a review board, where only one of the five members were members of the Judiciary, then this would run afoul of the doctrine, as it transferred the power to determine the length of the custodial sentence in individual cases from the judiciary to an executive body of government, whose duty is to set policy and run the day to day affairs of the state not dispense justice and determine sentencing.
It is also inappropriate for one to prescribe a mandatory sentence for the conviction of a criminal offence, because it denies the entrusted body i.e., the judiciary with the ability to weigh the circumstances of the crime and decide on the punishment.
As such, the Government determined that in order to be safeguarded from the court’s striking down this section, it would be better placed to permit the court themselves to make the determination on sentencing of minors, by providing them with full discretion.
Now, there has been much ado about this wide-ranging, unbridled and unchecked power given to the Judiciary, but the truth is that this power is still constrained by the Act, the sentencing Guidelines and other pieces of legislation such as the Criminal Code which originally determines the sentences of Crime.
In the Child Justice Act itself, under section 54, the court cannot impose a sentence on a child over the age of 14 years at the time of the commission of the offence, unless substantial and compelling reasons exist for imposing such a sentence to a correctional facility. Compelling reasons may be that one is convicted for an offence of murder, rape, child destruction, infanticide, manslaughter, treason, burglary, robbery- with aggravating circumstances, indecent assault, among other serious offences.
As such, the child will not even be imposed a custodial sentence to begin with, unless it is one of these offences. As such, the discretion is already constrained by the nature of the crime, albeit before there was a blanket three year maximum for any crime.
Further, if the child is unresponsive to the alternative sentence, wherein they are unable to respond favourably and possibly rehabilitate within the residential element under the Act, then they will be remitted to the correctional facility.
The correctional facility is the last resort, and it should be especially when dealing with minors!
The question which needs to be asked is what is the status, nature, and effectiveness of the alternative sentence and residential element which is a limitation and deterrence on the custodial sentence?
But, even beyond that, the newly minted Opposition Senator, Hon. Joshua Harrow, is patently incorrect, and has fallen already in the partisan trap of blaming the judiciary for our issue. Even if I’m sure he was being unnecessarily hyperbolic that this Amendment would permit indiscriminate and excessive sentencing for minors and allow judges with discretion without safeguards, and they have unchecked power to impose excessive powers on minors without mandatory reviews or limitations. He further noted that it can create dichotomies where two children committing the same offence can get different sentences based on the court’s discretion.
Actually, not only are the Judge’s discretion constrained, but the appeals process is also always a review and an inherent limitation. But the aim of sentencing for minors, quite correctly, is that no offence committed by two minors can be the same, and the court’s ability to dispense different sentences based on certain assessments in line with the sentencing guidelines is exactly what sentencing is about. It would be diabolical and arbitrary if every sentence was the same, as it means that judges are not taking into consideration mitigating and aggravating factors.
Further, the Judges are definitely constrained by the sentence of the crime within the Criminal Code and cannot sentence beyond such penalty.
As I interrogated in another piece in this paper in 2022, have we become so cynical that we are unable to trust our judicial officers to be fair in their dispensation of justice? Have we allowed ourselves to believe that such shortcomings as may be associated with our justice system must be blamed on our magistrates and judges only?
It is not a carte blanche approach and certainly it is not influenced by party colours of symbols as suggested by the Opposition Senator!
Certainly, even in circumstances of implicit bias of Judges, it is a wild assertion to make, particularly in the absence of compelling evidence. Judges do not pluck sentences from the air!
It is also interesting however, that for ages, we have complained that the judges’ sentences are too lenient and thus they need to be strengthened. Obviously, I know we did not mean for children, but it begs the question of whether there is any data which suggests to us that this amendment will provide for a dramatic increase in sentencing of minors from what they currently are? Or is the presence of the Amendment alone sufficient to cause this panic? Do we not believe that these same ‘lenient’ judges will also be so lenient with children? Time will tell.
Again, we should not utilise this moment to allow political officials to pontificate ad nauseum and escape the other responsibilities- which ‘judges are not taking away’ i.e., to pass laws and policies which reorient minors from a life of crime, through resocialisation, education, sports, early-childhood education, early targeted interventions among other interventions. The Independent Senator is instructive, about finding outlets for young people to express their youthful energies and reinforcing our teachings about right vs. wrong and providing them with positions of power and responsibility.
The truth is Paulo Freire is accurate that the by learning we do better and by doing we learn better and the best way to teach responsibility to young people is to give them responsibility for themselves. The best way for them to learn good governance is to assume responsibility for their governance and the best way for them to become disciplined is to assume responsibility for their discipline.
But the point is also that there are sentencing guidelines that judges will utilise when sentencing minors. Sentencing Guidelines are there to ensure the consistency of sentencing, which is critical to the rule of law we speak about so conveniently, i.e., determinacy, foreseeability among other elements. And while the guidelines do not constrain judges fully, they can depart from them in appropriate circumstances but have to justify doing so.
The manner in which it works is that Judges respect the maximum sentences prescribed by Parliament, allowing them to shape the sentence from 1 year to the maximum year, depending on harm, culpability, aggravating and mitigating factors among other considerations.
What Parliament possibly should have done, which was alluded to by former Prime Minister, Dr. Anthony, even while admonishing Parliament from abdicating their power, was finding a creative solution to work within the goal posts created by the courts in their recent judgements. It is my view that Parliaments have either, stuck their head in the proverbial sand, and blame the Judiciary for this issue of crime and violence, or complain ad nauseum about the judgements, which have struck down mandatory sentencing and other formulations.
Instead, Parliament must find a way to create sentences that work within these parameters, of having a minimum and maximum.
Beyond the law however, there are other questions which should have been asked.
Notwithstanding my ‘defence’ of the provision and the judicial discretion, there is a deeper question of what are the current strategies of rehabilitation, reintegration and prevention of minors engaging in criminal activities which goes hand in glove with ‘enforcement’? With the lessening of the role of USAID, what does that mean for youth engaged in crime initiatives?
Further, is section 7 of this Act even operational, such that, the Minister has responsibility to create a secure residential facility to rehabilitate a child that is sentenced? If it is, what are these methodologies that are being employed to facilitate rehabilitation, reintegration and ultimately turning youth away from a life of crime?
The aim of this Act has always been to divert young people away from the penal criminal system which only creates more criminals, because of the inability to foster rehabilitation and smooth reintegration. As such, if we lock up children into that vault, and not ensure that the other agencies established by the legislation are not in place, then we would be losing the critical mass required for our country’s development and ultimately increasing the rate of crime and violence.
It would have also been instructive if this debate provided us with the requisite statistical basis which justified such an amendment? Have we seen an uptick in the number of young offenders in the recent past to even justify or cause the contemplation of this Amendment? I therefore agree with the Independent Senator, who questioned what is the mischief that the Amendment sought to achieve?
It is incumbent on the Government to have provided such information!
It has been said that the Ministry is working on the Youth Services Centre and Juvenile Rehabilitation Centre, but it would do the Ministry and the Government well to know that the jurisprudence across the Caribbean, in cases like Attorney General v. Seepersad from Trinidad and Tobago, among others in Barbados and Jamaica, suggest that where Governments enact legislation that establishes diversion centres which are operational or ineffective, such that children must be remanded in prison, where they should not be, then it would be a contravention of the Constitution and fundamental rights of the child.
It is important that even as we have this debate, that we understand that institutional agencies created by legislation should seamlessly accompany the passage of the laws. Hand in glove!
While this debate has ended, it would do well for us to continue this conversation on how we deal with juveniles who are in conflict with the law, by finding the right balance between enforcement and prevention!
