Changes to the Prison Act/Rules in 2017, taking power from the governor general and giving it to the minister responsible for prisons and public safety, are said to be unconstitutional.
Attorney Charlesworth Tabor said the Director of Public Prosecution (DPP) Anthony Armstrong contended that the law is not constitutional during the case concerning two prisoners who are questioning why they were returned to prison this month, shortly after they were granted remission of the time remaining on their sentences for murder and manslaughter respectively.
Tabor told OBSERVER media the DPP made this statement at yesterday’s hearing of the habeas corpus ad subjiciendum cases filed by Bryan Frederik Soerowidjojo and Gideon Jackson, both of whom are his (Tabor’s) clients.
The lawyer said, “The DPP’s argument was simply that the AG’s [Attorney General Steadroy Benjamin’s] amendment to the Prison Act was unconstitutional. That being the case, his remission of the sentences was null and void.”
Tabor did not go into further specifics of the DPP’s arguments, particularly as they relate to why he, Armstrong, believes the law is unconstitutional.
However, Tabor said it would take a challenge of the very legislation to determine whether it is constitutional and that is not what the current case before the court is about.
“My argument was based on the principle of the presumption of constitutionality which implies that all Acts of Parliament are constitutional until declared not so by the court. Based on that principle, I went further to say that while the remission was lawful the revocation is unlawful since he had no such power,” Tabor added.
The matter was heard by High Court Justice Marissa Robertson who was recently assigned to the jurisdiction. She has reserved her ruling until April 12, according to Tabor.
The men Tabor is representing believe they should be freed right away because the attorney general – who is also the minister responsible for the prisons, public safety and justice – granted them remission of the time remaining on their jail sentences late last month.
Tabor is rejecting the position of minister Benjamin who said the convicts were returned to Her Majesty’s Prison because he (Benjamin) rescinded his first decision after he reconsidered the crimes for which they were convicted and the serious nature of those offences.
The lawyer said the minister has no authority to revoke or rescind the remission since this is not allowed for in law.
It has always been Tabor’s position that the granting of the remissions was lawful under the 2017 amendments to the Prison Act.
Under the Prison Amendment Act (2017) the change indicates, “All references to the Governor General in the Prison Rules made under the authority of this section shall be construed as a reference to the Minister.” In those cited references, it is the governor general who had power to grant remissions, among other things.
The specific legislation and all other changes can be found at http://laws.gov.ag/wp-content/uploads/2019/02/No.-17-of-2017-Prison-Amendment-Act-2017.pdf. It must be read in conjunction with the principal Act found at http://laws.gov.ag/wp-content/uploads/2018/08/cap-341.pdf.
Meanwhile, in the Writs filed on the men’s behalf by Tabor, they are supported by their partners.
Markiysia Jackson, wife of Gideon Jackson, and Shantel Irish, who says she is the fiancé of Soerowidjojo, swore in two affidavits that they have no knowledge why the men were re-arrested and jailed.
Both women said in their affidavits that all they know is that while in prison their partners were involved in several activities including working with the government’s Home Advancement Programme for the Indigent (HAPI) to build and repair homes
for citizens who required help.
They reported being told that their partners exhibited good behaviour and that was the reason for them being granted remission.
Soerowidjojo was convicted and sent to Her Majesty’s Prison on June 17, 2011 for murdering homeowner Lyndon Browne during a break-in at Browne’s home; and Jackson was jailed on July 14, 2016 for killing Dorothy Prince during a robbery at her workplace.
The men had pleaded guilty to murder and manslaughter respectively, and Soerowidjojo got a sentence of 16 years imprisonment while Jackson was sentenced to 12 years.