Sun | Oct 25, 2020

Editorial | Judge’s ruling stinging rebuke; supports constitutional rights

Published:Tuesday | September 22, 2020 | 12:09 AM

Last week’s comprehensive strike-down by the Supreme Court of the constitutional basis upon which the Holness administration employed a string of states of public emergencies will now require the Government to undertake a serious review of its recent crime-fighting strategies. It also raises questions about the rigour with which its legal advisers scrutinise the law before giving the greenlight to controversial policies.

Further, the ruling by Justice Bertram Morrison – which is likely to be appealed – continues the recent trend of Jamaica’s courts of asserting the rights of individuals guaranteed by the Constitution. And where these rights are abridged, the courts are asking the Government to justify its action. That is what is expected of a functioning liberal democracy.

For more than two and half years, up to the eve of the September 3 general election, states of public emergency, which gave the authorities, including the security minister, wide powers of arrest and detention, were in force in several regions of Jamaica . The Government’s argument was that they were important for attacking the country’s crisis of crime, especially homicide. Indeed, Prime Minister Andrew Holness last year warned that his administration would probably have to employ the measures for up to seven years , until murders fell to about 500 annually, or 18 per 100,000, which would put Jamaica in the range of its regional neighbours. In recent years, the homicide rate has hovered close to 46/100,000.

The states of emergency, which the Government credits for small declines in the crime rate, have been popular. What, however, this newspaper has long called for – which has not been produced – is the authorities’ analysis of what elements of the arrangements mostly have produced the credits attributed to them: the powers of arrest and detention or the deterrent effect of large numbers of police and soldiers in communities.

The case on which Justice Morrison ruled last week related to the former issue – five men who challenged the constitutionality of their detentions without charge or access to the courts. At the time of their July 9 affidavits, these men had been in detention for periods ranging between 177 and 431 days.

IMPORTANT ISSUES ADDRESSED

There are several profoundly important issues addressed in this ruling. They include people’s right of access to the courts; the doctrine of separation of powers and the independence of the judiciary; and the legality of states of emergency under the Emergency Powers Act (EPA) . The one that has not received the attention it deserves is the judge’s determination that the EPA is unconstitutional, which will no doubt lead to scrutiny of the work of people on whom Mr Holness relies for his legal advice.

In striking down the EPA, Justice Morrison said: “The Emergency Powers Act, in its current form, does not apply to the current Constitution since: (a) it makes references to Section 26 of the Constitution, which was repealed; (b) it does not qualify as a law for the purposes of Section 13 (9); (c) the EPA is in conflict with the Constitution; (d) there is no saving laws or modification clause to assist the court.”

In other words, the law did not keep up with the 2011 amendment of Jamaica’s Constitution, which enshrined the Charter of Fundamental Rights and Freedoms and limits infringement of those rights to what is “demonstrably justifiable in a free and democratic society”. Or, with respect to states of emergencies, it did not meet the criteria for what is reasonably justifiable to constrain a person’s free movement during such situations. Even if only these factors, Justice Morrison held, “there is no valid state of public emergency”.

OTHER FLAWS

The judge also identified other flaws in the declaration of the state of emergency, including the failure of the governor general’s proclamation “... to spell out any situation or information that could provide the public the background to the public emergency”, as defined by Section 20 (2) of the Constitution. He added: “... It is my view that the ‘emergency’ must be defined in the proclamation to facilitate the court’s carrying out its role or some evidence led by the violators of the basis of the emergency.”

Justice Morrison held further that neither the Constitution nor the EPA contemplated a violation of the separation of powers or the right of judges to enquire into the habeas corpus rights of persons detained during a state of emergency, notwithstanding their opportunity to apply to a review tribunal, as the five applicants were able to do. “I hold that the tribunal should not give a direction for the detention of the petitioner/applicant in circumstances which conflict with his constitutional rights unless the derogations of those rights are demonstrably justified in a free and democratic society,” the judge said. “The ‘expediency or necessary test’ should not replace the constitutional test.”

Neither, he argued, was there anything “within our constitutional framework which permits a minister (of national security) to issue a detention order” as was purported to be the case under the regulations governing the state of emergency. “ The Emergency Powers Act does not permit the minister to issue a detention order.”

Justice Morrison’s ruling is both a striking rebuke of the Government’s approach to the states of emergency and an underpinning of constitutional rights, which should set the administration to deep thinking.