Court Battle Over Vybz Kartel's Detention After Privy Council Ruling: A Legal Analysis

Quoting from Section 18 of the Corrections Act, which says the superintendent in charge of the prison is authorised to detain and keep all individuals duly committed, White said, “What is clear is that the superintendent holds the body pursuant to judicial orders or until such persons is discharged in due course of law.They will remain until the prosecutorial process is completed.”

Assistant Deputy Director of Public Prosecutions Paula-Sue Ferguson, in addressing the court, emphasised that, “The Privy Council did not submit a verdict of acquittal. They remitted that to the Court of Appeal. What that means is that the applicants remain appellants. The Court of Appeal must make the determination of discharge or retrial. The writ of habeas corpus is at this time not an appropriate application. They remain appellants and they are still in custody pursuant to lawful charges.”

Attorney for Vybz Kartel, Isat Buchanan, in a hard-hitting submission, argued that “a conviction must exist for there to be authority to detain” the men.

“They are not detained on a conviction currently. The order from the Privy Council was quite specific, in that it actually quashed the convictions, it didn’t direct the court to quash the convictions. Upon doing that, the Apex Court when they make orders is quite specific. The issue for this court is to indicate under what authority would the men remain in custody,” he challenged.

According to Buchanan, there is no provision in the Judicature (Appellate Jurisdiction) Act, Court of Appeal legislation, which contemplates how a case like the current one should be handled.

“It is the position of the applicants that their custody status was not reverted to pretrial detention when their conviction was quashed. The laws of Jamaica is silent on the issue that is now before the court. We would object to any manufacturing or academic concoctions that would allow the lacuna to be filled to say that in the meantime they can remain in abeyance,” the attorney declared.

Added Buchanan, “The question before the court is to address the lacuna in the law if it finds that there is a lacuna. The sentence no longer exists and the conviction is void. What is also clear is that the effect of the order of the Privy Council is that they are cloaked in the presumption of innocence. Similarly they are no longer even viewed as convicts.

“We would submit that the detainer being a part of the executive can only act pursuant of the powers given to him by law in accordance with British jurisprudence, Jamaican legislation, and the constitution applicable to the case at Bar,” added Buchanan.

In declaring that, “No member of the executive can interfere with the liberty or property of a Jamaican citizen except on the condition that he can support the legality of his actions before a court of justice,” Buchanan argued that, “It is the tradition of Jamaican jurisdiction, Commonwealth jurisprudence, traditional British jurisprudence, and what justice looks like that judges should not shrink from deciding such issues in the face of the executive unable to clearly say the authority upon which they are detaining or depriving the applicants of their liberty.”

Justice Thomas is to make her ruling at 2:00 pm today.

(Jamaica Observer)