Tue | Apr 24, 2018

Valerie Neita-Robertson | Don't demonise Bunting in immunity spat

Published:Friday | April 13, 2018 | 12:00 AM
Valerie Neita-Robertson

The Emergency Powers Act and Regulations exist in most developed and developing countries where emergency services have to act to ensure public safety, the restoration of order, the preservation of peace and the public interest. It is in that context that a state of emergency was called in May 2010 under the Bruce Golding government.

The then prime minister spoke in Parliament and the Cabinet about the need for the proclamation of a state of emergency and referred to "the attack on the State by criminal elements". No right-thinking Jamaican can deny that this was the state of affairs when the security forces were deployed to Tivoli Gardens to take the fugitive Christopher 'Dudus' Coke into custody and restore peace and good order to the affected communities.

The 'grant of the immunity' for the security forces is mandated by law so long as they have acted in good faith or are purported to have exercised their functions in the public interest. The proof of that condition is obviated by the 'certificate of the minister' that the act was done by the purported exercise of the security forces' function in the public interest.

No individuals were charged until July 30, 2012, when the Government had changed and Peter Bunting was the minister of national security. No issues of a certificate of immunity could have arisen in respect of the accused until they were charged. It would not have been possible for the prior minister of national security to sign a document when he was not minister at the time of the arrest of the men.

The minister, therefore, issued a certificate in respect of the accused that they acted in good faith, that is, not in any personal capacity or with malice. It is to be noted that it is the LAW that mandated immunity, not the minister who issued certificates of immunity. To categorise this matter as a moral issue is unfortunate and tarnishes not only the honourable minister's reputation, but prejudices our clients.

 

REVIEW OUR OPINIONS

 

In order for justice not to be an illusion, we, as responsible Jamaicans, must at all times review our individual and personal opinions without using our positions and media to express same, regardless of the temptations.

Although the Emergency Powers Act was passed in 1938, the regulations appropriate to this matter were laid in 2010 under the previous administration, specifically to be appropriate to the state of emergency that was declared and was, therefore, the responsibility of the previous administration, and was its expressed intent to protect the security forces.

It would be very appropriate for The Gleaner to alert the public to the seriousness and gravity of the declarations of states of emergency, which give extraordinary powers to the executive and which seriously impact the constitutional rights of the citizen. It would behove you to draw the public's attention to this fact so that these frequent declarations and the granting of emergency powers as a routine crime-fighting tool should be looked at with caution and scrupulous care.

More permanent and lasting measures for the eradication of crime should be advocated other than the worn cordon and search of depressed areas under the cover and protection of emergency powers.

- Valerie C. Neita-Robertson, QC, is an attorney-at-law. Email feedback to columns@gleanerjm.com.