Sat | Dec 5, 2020

Editorial | States of emergency cannot be the only solution

Published:Monday | October 19, 2020 | 7:23 AM

Horace Chang, the national security minister, and his police chief, Major General Antony Anderson, have been having a public peeve at their loss, at least for now, of the use of states of public emergency in combating violent crime in Jamaica. They see it as their most potent weapon.

“We need the additional tool,” Dr Chang said at a press conference last week. Added Major General Anderson: “... It is important that we get it … .”

Maybe their annoyance is justified. But even so, they should feel themselves obliged to be fully transparent about what is being done, and timelines thereto, to create an efficient and honest constabulary, capable of confronting criminality without having to resort to the long-term use of states of emergency. Further, they should explain how, under future states of emergency, the rights of individuals will be protected, in accordance with the Constitution, without having to be lectured by the courts about the freedoms guaranteed therein.

Up until just ahead of last month’s general election there were, for two and half years, states of emergency in some regions of Jamaica, in response to the island’s historically high rate of homicides – currently at around 46 per 100,000. Ending the emergency powers was a specific decision of the Government, in keeping with a promise by Prime Minister Andrew Holness that Jamaicans would not vote with the measures in place. Immediately after the election, however, the Supreme Court comprehensively struck down the states of emergency as unconstitutional in a habeas corpus case brought by five men who, at the time of their affidavits, were detained for between 177 and 431 days.

UNCONSTITUTIONAL

Perhaps the most straightforward of Justice Bertram Morrison’s findings was that the Emergency Powers Act (EPA), upon which the states of emergency and their supporting regulations rested, was in itself unconstitutional. It made references, the judge noted, to Section 26 of the Constitution, which was repealed when a new Charter of Fundamental Rights and Freedoms was enacted in 2011. Under the new charter, while the State may, in certain circumstances, abridge fundamental rights, the onus was on the Government to prove that its action was “demonstrably justifiable in a free and democratic society”. There were “saving laws or modification clauses” for the EPA in the revised arrangements, Justice Morrison noted.

The judge also ruled that the regulations under which the states of emergency operated violated the Constitution and its doctrine of separation of powers between the judiciary and the executive by purporting to give the minister the right to issue detention orders. He also held that review tribunals established under regulations could not prevent detainees from applying to the court under habeas corpus rules.

At last week’s press conference, Major General Anderson reported that of 140 persons released at the end of the emergency, which presumably was before Justice Morrison’s ruling, 57, or 41 per cent, were quickly back on the radar of law enforcement. These included four men who were killed by “other gangsters’’, and the fifth who was the victim of “fatal shooting with the police”. Sixteen of the group are suspected of murder. These, clearly, are significant issues for the police. But liberal democracies have been careful to walk a line between what rights may be surrendered in the search for law and order.

NO EXPLANATION

In this regard, of concern to people who care about safeguarding individual rights, and are aware of the dangers when the State is allowed unfettered power to limit freedoms, is that the police, in their use of emergency powers, appear to cast a wide net, rather than engage in a targeted action against suspected criminals. Or, their investigative work yields too little in actionable results. For instance, there is no explanation why someone would be detained for 441 days, more than 14 months, without charge, or that 58 per cent of the detainees – including the 57 of whom Major General Anderson spoke – were being similarly held without charge.

Two legitimate issues arise here: a fear that states of emergency might provide the police with a back-door return to the old and long-repealed Suppression of Crime Act, which allowed the constabulary wide powers of largely unaccountable search and arrest; and that such powers, similar to how it fed the weakening of accountability by the police for a quarter of century, from the 1970s into the 1990s, will, in this period, limit the force’s capacity for transformation. Further, accountable action, or opaque behaviour by the State, is antithetical to a liberal democracy.

The attorney general, Marlene Malahoo Forte, promised to appeal Justice Morrison’s ruling, in which event the Government can, until a final determination of the matter, or it changes the legislation, return to states of emergency. That, hopefully, will mean better targeted operations, greater transparency and action within the realm of the Constitution by the police. In the meantime the constabulary, and Minister Chang, should publish the full reform agenda for the police force, including the timelines for things to be done.