Mon | Jan 18, 2021

Editorial | Has Government appealed SOE case?

Published:Friday | December 4, 2020 | 12:16 AM

In his remarks last week at the groundbreaking for a new police station in Mount Salem, St James, Prime Minister Andrew Holness made significant observations with respect to his role as leader of the country, his responsibility to citizens and, ultimately, the integrity of the State.

It was his “job and duty”, the prime minister said, to keep Jamaicans safe, which, he said, was being achieved. That, of course, is an obligation of all leaders, on which, as Mr Holness said of himself, they have to act with “certainty and decisiveness”. But his task, the PM said, had become “a difficult balancing act because we now do not have the tools of the SOE (state of emergency) because it is being questioned and challenged”.

The implication, on its face, is that legal actions that limit the Government’s use of states of emergency as a crime-fighting tool is a bad, inherently dangerous to the security and well-being of Jamaicans. Such a conclusion, which we do not believe to be an unreasonable interpretation of Mr Holness’ remarks, has to be read in the context of the September Supreme Court ruling that struck down as unconstitutional a series of states of public emergency that were in place in the island.

Mr Holness, however, immediately sought to ameliorate any potentially negative connotations from his remarks. “Compliance with what is legal and constitutional is not something that is optional,” he said. “The Government of Jamaica must always be in compliance with the laws it sets.”

That is a position with which this newspaper, as should all Jamaicans, is fully in concert. It is important, in the circumstance, that the Government says clearly whether it has appealed, or is appealing, the September court ruling, or what it has in mind to resolve what Mr Holness perceives to be serious tensions between sustaining fundamental rights and freedoms and upholding law and order and maintaining national security.

Jamaica has extraordinarily high levels of crime, especially violent ones. Despite an expected two per cent decline in murders this year, there will still be approximately 1,300 homicides, for a murder rate of 44 per 100,000. That is the among the worst in the world. It is against the backdrop of these kinds of statistics, and worse, that the Holness administration, in 2018, resorted to declaring states of emergency in parishes and districts, giving the security forces additional powers to search and detain people, without a fastidious requirement of bringing detainees before the courts.

APPEARED TO WORK

The tactics appeared to work. Nationally, the number of murders fell 20 per cent, and in the parish of St James, where the homicide rate in 2017 was over 200, murders plummeted 70 per cent. It is not clear what proportion of the reductions resulted from detentions or the deterrent effect of large numbers of police and soldiers in communities. Critics, however, argued that many detentions were arbitrary and that by the time of the September court rulings, the states of emergency were already delivering diminishing returns.

Moreover, in his decisions arising from a habeas corpus case, five men who faced lengthy detentions – one for 431 days – under emergency regulations, Justice Bertram Morrison held power purportedly granted to the national security minister to sign detention orders was offensive to the doctrine of separation of powers between the judiciary and the executive. Even the existence of emergency review tribunals could not stop detainees from petitioning the courts.

Further, the judge said, the Government had not shown that its actions to infringe on fundamental rights and freedoms was proportionate with the constitutional standard of being “demonstrably justifiable in a free and democratic society”. Additionally, the old Emergency Powers Act upon which the states of emergency stood was itself unconstitutional having referred to a section of the Constitution, which no longer existed since the 2011 amendments establishing the Charter of Fundamental Rights and Freedoms.

The large point here is that democracy is an often messy business, demanding careful, rules-based management and oversight. We, for example, do not question Prime Minister Holness’ commitment to democratic norms. But the best guarantee of the fundamental rights and freedoms that are the foundations of a liberal democracy is not what is in a leader’s heart. Rather, it is the vigilance of citizens and the robustness and integrity with which the institutions established to police these arrangements go about their mission.