#BTEditorial – From McCarthy to Marshall; a rethink required

During the well-documented McCarthy era in the United States in the late 1940s and 1950s, many innocent Americans became victims of over-zealous Senator Joseph McCarthy’s desire to protect his homeland from communists and communist sympathizers.

McCarthy’s heart might have been in the right place, as it should be every citizen’s desire to live in a country free from internal and external threat and to do all that is legally permissible to protect society from nefarious activities. However, McCarthy’s head, along with those who allowed his terror, certainly wasn’t where it should have been. In several instances, many persons were persecuted and prosecuted without credible evidence or justification, especially that which would stand up to being tested in a reputable court of law.

During this McCarthy debacle, several people lost their jobs, homes, innocent citizens such as W.E.B. Du Bois, Langston Hughes and Albert Einstein were blacklisted. Some were imprisoned. Many brought before the court and convicted on trumped-up allegations had these verdicts subsequently overturned. Most importantly, a number of laws used to legitimize victimization of citizens were subsequently declared unconstitutional.

And so we come to the head and the heart behind the Proceeds And Instrumentalities of Crime Act 2019. We believe that the Mia Mottley administration has the best interest of Barbados at heart. We also believe that Attorney General Dale Marshall is committed to combatting those involved and benefitting from the illegal drugs trade, corruption, and any other form of illegal activity from which ill-gotten gains can be used to their advantage The ruling Barbados Labour Party and indeed the previous Democratic Labour Party administration has been consistent in their attitude and determination to fight crime in Barbados as demonstrated by the legislative teeth which they have from time to time brought to our Parliament over the past decades. Both institutions are to be commended.

But we have a concern, a grave concern. And this relates to Section 69 subsection 2 of the Act which states: “The powers conferred by this Part are exercisable in relation to any property, including cash, whether or not proceedings have been brought for an offence in connection with the property.” In essence, what Mr Marshall stood up yesterday and seemingly told citizens of Barbados that an entity called a Recovery Authority will have legal sway to seize property in civil proceedings whether or not cases related to an offence in connection with the property have been brought. In other words, seizures could be made without a conviction or the authority of the court in respect of specific property. Irrespective of whether one is a lawyer or not, whether one accepts that the burden of proof in civil matters is less than that in criminal cases, whether the balance of probability is less strenuously applied in civil matters or not, there seems something inherently wrong about the possibility of seizures being applied to properties without the input and the transparency of proceedings in a law court before such seizures.

Section 16 subsection (1) of Barbados’ Constitution states: “No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except by or under the authority of a written law, and where provision applying to that acquisition or taking of possession is made by a written law.”  The Proceeds And Instrumentalities of Crime Act 2019 is “written law” and thus conforms to the highest law of the land. But the irony, it seems, is that where seizures can be made without the authority of the court, complainants have to resort to the court for redress and compensation when such seizures are appealed. It seems rather counterproductive that all seizures whether through the civil or criminal process should not have the weight of the court behind them from the very outset.

One must appreciate that corruption in society does not stop at the doors of drug dealers, merchandisers, lawyers, industrialists or priests. Organizations can be corrupted, committees can be corrupted, judges and magistrates too. But what court proceedings offer is a level of transparency, openness, accountability and documented record, that other probative bodies might not present. We must guard against any possibility of Section 69 (2) of the Proceeds And Instrumentalities of Crime Act 2019 being abused or applied under dubious circumstances.

More than a decade ago the then Owen Arthur administration with Mr Marshall sitting in the same chair which he sits today, sought to bring to Parliament an amended Road Traffic Act and after the first sitting of the Lower House, it was found to be fraught with inconsistencies. It was quickly withdrawn, cleaned up, and brought back years later under the Freundel Stuart administration. The same pull-back might be required now.

We wholeheartedly support Mr Marshall and his Government’s every effort to ensure that criminal elements do not benefit from gains obtained other than through legitimate means. But everything must be done to ensure that law-abiding citizens are not caught or inconvenienced by any financial dragnet employed to punish unholy elements in our midst. Putting our law courts at the forefront of all seizures is a best practice to ensure this.