Editorial | What of that shiprider review?

A year and a half ago, in the midst of revelations of the trammelling and mistreatment of five fishermen by the US Coast Guard, the foreign minister, Kamina Johnson Smith, promised a review of Jamaica’s shiprider agreement with the United States.

“It is something that we clearly need to do,” Mrs Johnson Smith told reporters. “The agreement does provide for review, and notwithstanding, we think that the matters that have been raised in the public domain justify the types of discussions that we have already started with the US government.”

How that review concluded, including whether adjustments were made to the shiprider protocols, was never disclosed. Public discussion of the matter petered out. The issue, however, has renewed relevance with the US Coast Guard’s latest detention of four Jamaicans at sea, their seemingly questionable prosecution, and the destruction of their vessel.

It isn’t too late for Mrs Johnson Smith to report on that 2019 review and say what, if any, oversight mechanisms were put in place to ensure the Americans respect the rights of Jamaicans, including their property, who are held under this security partnership.

The shiprider agreement, initially framed as combating the transnational trafficking in drugs, allows US and Jamaican law enforcers, with the permission of either party, to engage in ‘hot pursuit’ of suspect vessels in each other’s territorial waters, to apprehend vessels and crew. In practice, it is the US Coast Guard and other American patrol vessels that ‘hotly pursue’ into other states’ territorial waters.

Originally, a Jamaican detained in international waters on a Jamaican-registered vessel was subject solely to the jurisdiction of the Jamaican courts. But under the 2016 amendment to the Maritime Drug Trafficking (Suppression) Act ­– which provides the legal basis for enforcing the shiprider agreement – the Jamaican authorities can, in such situations, waive their prosecutorial jurisdiction over the island’s citizens. However, in exercising this authority, the appropriate minister must be satisfied that a suspect will not be “punished, detained or restricted of his personal liberty by reason of his race, place of origin, social class, colour, religion or political opinions”.

How the Jamaican authorities exercise this discretion became a major issue in mid-2019 when the American Civil Liberties Union (ACLU) announced that it was suing the US government on behalf of five Jamaican fishermen over their 2017 treatment by the US Coast Guard after being held in Haitian waters. No marijuana was found on their boat. The US Coast Guard claimed it was thrown overboard.

PLEADED GUILTY

When the men were eventually taken to court in Florida, American prosecutors conceded that they couldn’t sustain the drug trafficking charges. The five, however, pleaded guilty to making false statements to federal law-enforcement officials. The Jamaicans said they made that plea not because they were guilty. They were advised that it was the easy route to quick return home. They spent 10 months in jail.

The basis of their ACLU suit is how they claim to have been treated on Coast Guard vessels. For more than a month, they were incommunicado at sea, bouncing from vessel to vessel, often shackled to the decks of ships, in thin clothes and open to the elements – scorching sun, cold rain and drenching swells.

Questions over the jurisdiction of the Americans under shiprider, and how it is exercised, is an old dispute that, in the past, also involved the ship Lady Lawla – the same one recently destroyed at sea by the Americans. In 2009, the US Coast Guard encountered Lady Lawla at sea and apparently suspected it of transporting drugs. The boat was escorted to port to be searched. The vessel’s owner, David Chin, objected to American officers boarding his boat, docked in a Jamaican harbour, for the search, which yielded nothing illegal. In a 2014 ruling, Justice David Batts agreed that once the vessel was safely docked in Jamaica, a foreign law-enforcement agency could have no role in its search.

In the recent incident, Lady Lawla was intercepted by the US Coast Guard in international waters, closest to Jamaica. According to lawyers, it was heading to Venezuela. The Americans claimed that liquid cocaine was aboard the vessel. Its four crew members were tried for drug trafficking. American prosecutors argued that narcotics test kits proved that cocaine was in several canisters aboard.

NO EVIDENCE OF COCAINE

The case was, however, dismissed. The judge, according to local lawyers, found that there was, in fact, no evidence of cocaine. Instead, 150 gallons of gasolene was misidentified for the drug in liquid form.

This newspaper makes no comment on the reasons why Lady Lawla was suspected of transporting drugs, or of the appropriateness of the decision by Jamaican authorities to waive their rights to try its crew members in a domestic court. But reasonable people will question the destruction of the vessel, whether and if its antecedents contributed to that action and the motivation thereto. It will also be of interest whether Lady Lawla’s owner now has a cause of action with respect to property rights, for which Jamaican taxpayers might be liable. The crew members, too, might have issues to raise.

In June 2019, Mrs Johnson Smith said of the shiprider review: “What we want is to ensure we not only get first-hand assurance about their (US) commitment to the spirit in which we entered into this partnership, but that our processes, our procedures and our protocol on both sides are not only complementary and effective from a security perspective, but in respect of the protection of the rights of our citizens. That is what we hope to accomplish.”

Jamaicans wish to know whether it was achieved.