Linton P. Gordon | Too much power in cops' hands
Preventative detention contains all the ingredients needed to escalate hate, disputes and vindictiveness in domestic relations.
The recent announcement by the Government that such of policy will be pursued and implemented by the police is not the best option for addressing crime. It is also not the first occasion on which effort is being made to address the matter of domestic violence.
From as far back as 1998, The Domestic Violence Act was brought into being by Parliament. This act was intended to ensure that parties in domestic relations could apply to the court for protection in circumstances where they are being abused by the other party. Thus, a spouse, or a parent of a child, may apply to the Parish Court for a protection order, which would prohibit the offending spouse from entering or remaining in the household and from visiting the areas where it is deemed the residence is located. The order may also prohibit the offended spouse from visiting the workplace of the other spouse or from visiting the school being attended by a child involved.
A protection order can go on to prohibit the offending spouse from watching or besetting the residence, place of work or the school of the person being protected. The order can even go as far as to prohibit the making of telephone calls to the party being protected. In making the order, the court need only be satisfied that the offending party "... has used or threatened to use, violence against, or cause physical or mental injury to ..." the person seeking the protection of the court. It is important to note that an application for protection order can be made ex parte, that is to say in the absence of the offending party.
The protection order gives a constable the power to arrest without warrant a person whom he has reasonable cause to suspect of having committed a breach of the protection order. The act requires that anyone so arrested by a constable shall be brought before the court within a period of 48 hours from the time of being arrested.
It is very important for us to appreciate and understand that under the Domestic Violence Act, the interest of the parties, and in particular the rights of the offending party, are subject to the directions and decision of a parish judge.
Preventative detention places too much power in the hands of a constable, and this can lead to abuses, as was the case under the Suppression of Crime Act. It requires a constable to rely on a mere oral report/complaint to him to make a decision to deprive a citizen of his right to freedom of movement and the right to protection from arbitrary arrest. This should be compared and contrasted with the procedure under the Domestic Violence Act where the applicant for a protection order is usually required to submit an affidavit setting out the nature, details and particulars of the complaint.
A better course for the Government in its effort to address domestic violence is for them to strengthen the Domestic Violence Act by providing for applications to be made orally to the court, as is the case now with an application for habeas corpus. An application for habeas corpus can now be made to a parish judge by an attorney addressing the judge and bringing to the court's attention that a citizen has been in custody for a period and that his rights are being breached.
The judge will forthwith instruct the clerk of court to list the detainee in the court list for that day and will give it priority. The judge will hear submissions from the attorney and will make appropriate orders, including requiring the police officers to explain and account for the citizen being held in custody.
The Government could perhaps amend the law to provide that domestic violence matters may initially be brought to court this way.
Preventative detention cast a dark shadow of constitutional violation over Jamaica. It is always better for matters of detention and the denial of citizens to rights be managed and administered by judges rather than by constables.