Thu | Mar 22, 2018

Martin Henry | Rights and fighting crime

Published:Sunday | February 19, 2017 | 12:00 AM
Martin Henry

Every law takes away some of our rights.

That's why there are anarchists. Anarchism is not lawlessness, as we are often led to believe. Anarchism is a political philosophy that holds the State to be undesirable, unnecessary and, in fact, harmful, and which believes in the abolition of all government and the organisation of stateless societies on a voluntary, cooperative basis without recourse to force or compulsion. The trouble is that nobody has yet got any such society to work.

If you take a simple universal law like taxation, the taking away of rights by the law is abundantly clear. For the poor, suffering PAYE worker in Jamaica, the Government seizes more than 50 per cent of income when income tax, GCT, SCT on gas, education tax and NHT deductions are applied. The negative impact on property rights is obvious.

Taxes are necessary if we are going to have a functional state. But what do we get in exchange for this onerous tax burden that amounts to a forced appropriation of more than half of our income?

In the Social Contract propositions of Hobbes, Locke, Rousseau, Kant, and, more recently, Rawls, people have 'consented' to give up some of their freedoms to a central authority in exchange for protection of their remaining rights.

And none of these rights is more fundamental than the right to life, which, if it is not protected, none of the other rights really mater. Not only do dead men tell no tales, they need no other rights.

The Jamaican State, in its social contract with us, has been a miserable failure in protecting the right to life, even without the assistance of a war or of external threats. Last year, 1,350 people were murdered by Jamaican citizens, and this has been the trend for many years.

The current spike in murders, reflecting the incapacity of the State to protect life, has led to renewed calls for the Government to take away even more of our rights in order to discharge its social-contract duty to protect us.

The Ian Boyne call has generated a great deal of public discussion. The minister of national security and the minister of justice have rejected it. The attorney general leans towards it. But since the challenge was thrown down directly to the prime minister by his superior as a test of courage, if not of philosophy and law, and we haven't heard from a shivering Mr Holness yet on the matter, the jury is still out as to how the Government will respond.




We have already quietly given up or quietly allowed the taking away of a great deal of our rights for our protection by the State and for the looking after of our general welfare. Not least of all our property rights through taxation. The present Government is very sensibly, though very belatedly, proposing to repurpose more of our tax dollars to better carry out its failed fundamental duty of providing security for citizens.

The State has set out 19 fundamental rights and freedoms in the grand Charter of Fundamental Rights and Freedoms. But, like the Lord, the State gives and the State takes away. Behind every right and freedom offered by the charter is a provision for the State to take it away under certain circumstances. In fact, the Government just needs to declare a 'period of public emergency', such as the crime wave could perceivably trigger, to provide it freedom to infringe upon virtually every right and freedom in the charter.

Let us consider some of the sacrifices of rights and freedoms we have already been called upon to make for the fight against crime:

The charter offers the right to freedom of movement; the police already have the lawful power of curfew.

The charter offers protection from search of person and property; the police say they have the right to stop and search motor vehicles without warrant. And may have the power to similarly enter and search homes and places of business.

The charter offers protection of privacy of property and communication; the police have powers to intercept and to receive records of electronic communication.

The charter not only offers the right to due process, but the whole judicial system rests upon the principle of accused persons being innocent until proven guilty and the right not to incriminate oneself. Yet there is already a raft of laws to deal with corruption which require that certain citizens prove that they are not guilty, under the starting assumption that they, in fact, are, unless they can prove otherwise.

The new anti-gang laws, widely supported by a citizenry weary of crime and violence, have just had their first conviction, but have in them the potential to infringe upon the right to freedom of peaceful assembly and association. When is the corner crew not a criminal gang or is a criminal gang?




Preventative detention is the new buzzword in crime-fighting aimed at reducing incidents of domestic violence. The director of public prosecutions has strangely stepped out of the role of her office and into the shoes, gown and wig of the attorney general to remind us that a constable already has the authority to detain anyone he thinks is about to commit a crime. The law also allows detention of a suspect for up to 24 hours while the police investigates to lay charges and execute a formal arrest.

The state minister for national security says law-abiding citizens have nothing to fear from preventative detention. Really? And who is a law-abiding citizen? One who has not been convicted of any crime.

The charter offers freedom from discrimination on the grounds of gender and respect for private and family life and privacy of the home. As necessary as preventative detention may be, it must necessarily involve the state invasion of domestic life. And as sure as the sun will rise tomorrow morning, it will be tilted against men, and without due process.

The alternative of removing from the situation, by their own free consent, persons who feel threatened seems not to have crossed the minds of the zealous crime-fighters as a more reasonable and more rights-friendly approach. But Government would have nowhere to put these removed persons. And detained persons housed in Jamaican lockups, and without any charge at that, will be held like other prisoners under cruel and inhumane conditions considering the state of those lockups.

The police have an arsenal of underutilised laws for fighting crime. They need more people and more resources to catch more criminals and to build more airtight cases that can be speedily put before more judges for more convictions, with more prison spaces available. In the meantime, they should control public spaces, disrupt the gangs, prosecute more quality-of-life misdemeanours, and send a powerful signal for law and order. It is not more draconian measures that we need. We should remember the Suppression of Crime Act.

- Martin Henry is a university administrator. Email feedback to columns@| and