Jun 26, 2012

Constitution Review: Part III

For this upcoming Saturday, June 30 our discussion will air live at 6 a.m. PST, 9 a.m. EST, 13 hrs GMT, 15 hrs CAT. These are the provisions we will be discussing: 

Equality before the law
45. All persons are equal before the law and have the right to equal protection and benefit of the law.

Access and right to Justice 

47. (1) A person has the right to access justice.
(2) A person has the right to have any dispute resolved and decided timely and to have a fair hearing before a court or, where appropriate, any other independent and impartial tribunal.
(3) Where a person has any claim or judgment against the State –
(a) the claim may be instituted by proceedings against the State; and (b) the judgment may be enforced by execution against the State, after one year of the delivery of the judgment. (4) The State shall be liable in tort to the same extent as a private person of full age and capacity. (5) A court shall not order any security for costs on matters of public interest litigation.

Rights of suspects and arrested persons 

48. Subject to Article 68, a person who is a suspect, arrested or detained for allegedly committing an offence has the right –
Rights of suspects and arrested persons
(a) to remain silent;
(b) to be informed in a language which that person understands of the –
(i) right to remain silent; and
(ii) consequences of remaining silent;

(c) to be informed, as soon as reasonably practicable, of the reasons for the arrest or detention–
(i) in a language which that person understands;
(ii) in the case of a visually impaired person, in Braille;
(iii) in the case of a deaf person, in sign language; or
(iv) in such other appropriate means of communication as may be prescribed by or under an Act of Parliament;

(d) not to be compelled to make any confession or admission;
(e) to be held separately from persons who are serving a sentence;
(f) to be brought before a court –
(i) within forty-eight hours after being arrested or detained, or to be released on bond or bail;
(ii) not later than the end of the first court day after the expiry of the forty-eight hours, if the forty-eight hours expire outside ordinary court hours, or to be released on bond;
(iii) on a day that is not an ordinary court day, or to be released on bond;
(iv) as speedily as possible, if that person is arrested or detained far from a court, or to be released on bond or bail;
(v) to be tried within ninety days or where appropriate, to be released on bond or bail; or (vi) which shall have the power to determine whether or not bail should be granted, either unconditionally or subject to reasonable conditions; and

(g) to be released on bond or bail, pending trial, on reasonable conditions, unless there are compelling reasons to the contrary, as determined by the court.

Rights of persons detained and in custody

49. (1) A person shall not be detained without being charged and tried, except during a war, public emergency or threatened state of public emergency.

(2) A person who is held in custody, whether sentenced or not, retains all that person’s rights and freedoms under this Constitution, except to the extent that a right or freedom is incompatible with the fact of being in custody.
(3) A person who is detained or held in custody is entitled to petition for a writ of habeas corpus. (4) Parliament shall enact legislation that-
(a) provides for the humane treatment of persons detained, held in custody or imprisoned;
(b) takes into account the relevant international human rights instruments on the rights of persons detained or in custody; and
(c) provides for the regulation of the prison system, its operation and maintenance.

Fair Trial

50. (1) An accused person has the right to a fair trial which includes the right –
(a) to be presumed innocent until the contrary is proved;

(b) to be informed, as soon as is reasonably practicable, of the charge with sufficient details to answer the charge-
(i) in a language which that person understands;
(ii) in the case of a visually impaired person, in Braille;
(iii) in the case of a deaf person, in sign language; or
(iv) in such other appropriate form of communication as may be prescribed by or under an Act of Parliament;

(c) to have adequate time and facilities to prepare a defence;

(d) to be present when being tried, unless the conduct or presence of the accused person makes it impossible for the trial to proceed;

(e) to have the trial commenced and concluded and judgment given without unreasonable delay;

(f) to compensation for wrongful detention or imprisonment;
(g) to choose, and be represented by, a legal practitioner and to be informed of this right before taking plea;

(h) to have a legal practitioner assigned to the accused person by the State and at public expense, if substantial injustice would otherwise result, and to be informed of this right promptly;

(i) to remain silent during the trial and not to testify during the proceedings;

(j) to adduce and challenge evidence;

(k) not to have illegally obtained evidence admissible in the trial;

(l) not to be compelled to give self-incriminating evidence;

(m) not to be compelled to make any confession or admission;

(n) to have, without payment, the assistance of an interpreter if the accused person cannot understand the language used at the trial, and in the case of a deaf person, a sign language interpreter;

(o) not to be charged, tried or convicted for an act or omission that was not, at the time it was committed or omitted, an offence under any other law;

(p) not to be tried for an offence in respect of an act or omission for which that person had previously been acquitted or convicted;

(q) to the benefit of the least severe of the prescribed punishments if the prescribed punishment for an offence has been changed between the time that offence was committed and the time of sentencing; and

(r) of appeal to, or review by, a higher court.

(2) Where this Article requires information to be given to a person, that information shall be given-
(a) in a language which that person understands;
(b) in the case of a visually impaired person, in Braille;
(c) in the case of a deaf person, in sign language; or
(d) in such other appropriate form of communication as may be prescribed by or under an Act of Parliament.

(3) An accused person charged with an offence is entitled, on request, at any stage of the trial, to a copy of the record of the proceedings of the trial.

(4) A person who is convicted of a criminal offence is entitled, on request, to a copy of the record of the proceedings of the trial, within fourteen days after it has been transcribed.

(5) A person who is convicted of a criminal offence and whose appeal has been dismissed by the highest court to which that person is entitled to appeal, may petition the Supreme Court for a new trial if new and compelling evidence has become available.

(6) Where there is compelling evidence that a person, who has been convicted by a court, may be innocent of an offence, the State may petition the Supreme Court for it to examine such evidence and make a determination as to whether that person was guilty of the offence.

(7) The entry of a nolle prosequi is not an acquittal.
(8) Where a person in respect of whom a nolle prosequi has been entered is not charged on the same facts within twelve months of the entry of the nolle prosequi, the charge shall be void from the date on which that person was charged.

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