Martin Henry | One Noise Abatement Act, one Jamaica under law
With hardly enough time to sleep following her engagement with carnival last Sunday, music promoter and Minister of Culture Olivia 'Babsy' Grange dashed off a press release on Monday morning to express her "concern and regret" over law enforcement shutting down an entertainment event which the police said was in breach of the 1997 Noise Abatement Act, and arresting the promoter and selector.
The material facts of the case, as given by the police, are that about 10:30 on Sunday night, they responded to calls by residents complaining about loud noise coming from the Dub Club event on Skyline Drive in the Jacks Hill area of Kingston.
The cops went to the location and asked the promoter to produce his police permit for the event. When the permit was not forthcoming, he was instructed to turn off the music and advised that he would be charged under the Noise Abatement Act.
Patrons of the event became boisterous and tried to prevent the police from carrying out their job, at which point pepper spray was discharged to subdue the crowd and bring the situation under control. The promoter and selector were then taken into custody.
Ms Grange, who is constitutionally committed to actions for "the peace, order and good government of Jamaica", did not dispute the police facts as 'alternative facts'. She is deeply worried about the wrong message being sent. "I want to quickly express my concern and regret that an incident like this should have happened on a day when carnival, a quite different cultural event, was taking place ... as it sends a wrong message that there are two Jamaicas."
This leader in Government for all Jamaicans then seamlessly slides into a glowing letter of recommendation for the iconic promoter, "who has dedicated and promoted roots reggae for all these years, so he deserves recognition for his consistent support of our indigenous Jamaican culture. His work has grown out of a desire to promote our culture and he should be praised for that."
ABOVE THE LAW
Lurking below the surface of the minister's glowing defence are the views that a 'good man' is above the law, that Jamaican indigenous culture in music is loud and lawless, that law enforcement is hostile to 'the people' when certain laws are enforced, and that if the law is not consistently applied, it should not be applied at all - views that enjoy widespread public sympathy among the pervasive victim class.
She plays the two Jamaicas card, knowing full well that that card gives a big bang for a little buck. There are indeed two Jamaicas. In addition to her political mentor Mr Seaga's 'haves and have-nots', Jamaica can be diced into any number of dualities along numerous cleavage lines of preference.
And when all else fails, the colour and class card can always be played to great effect.
There are Jamaicans who desire some peace and quiet in the enjoyment of their personal and property rights; and there are Jamaicans who like their entertainment loud and strong. And there is a massive crossover between both classes. A main purpose of just laws is to balance the rights and freedoms of various categories of citizens who would otherwise be in contention over the exercise of those rights and freedoms. Another is to maintain public order in the general public interest.
Minister Grange's boss, Prime Minister Andrew Holness, has been laying down human rights as a plank of his Government from his inaugural address to most recently in his contribution to this year's Budget Debate.
In the Budget Debate, the prime minister said: "The Charter [of Fundamental Rights and Freedoms] makes it clear that 'the State has an obligation to promote universal respect for; and observance of human rights and freedoms'. Within the general scheme of our Constitution, therefore, Government is not merely a passive observer of fundamental rights and freedoms ... . Government has a duty to actively ensure that threats to life are minimised, and the rights and freedoms which determine quality of life are expanded. Anything that threatens life, and the enabling freedoms and security to enjoy life, must get the direct and instrumental attention of Government's policies and actions."
And Minister Grange's Cabinet colleague, Minister of National Security Robert Montague, in his contribution to the Sectoral Debate last Wednesday, came out swinging for "public order" as a key plank in his back-to-basics crime-fighting strategy.
The do-as-I-please mentality must be curbed, Minister Montague told the Parliament with Minister Grange sitting there.
The Noise Abatement Act is a core component of public order legislation and of the rights of citizens to live undisturbed in their own property.
Minister Grange is banking on a parliamentary review of the 20-year old act to produce amendments to free up the music and the culture. It would be most interesting to hear what the other members of a Cabinet divided on the matter have to say about the matter. But I guess we will know when the debate for the amendment of the act comes up.
In a bout of skewed scholarship, cultural studies lecturer Dr Sonjah Stanley Niaah, addressing a mainly university audience earlier this year, has called for the Noise Abatement Act to be replaced with a Sound Regulations Act as a critical step towards shifting the colonial definition of the people's entertainment as noise [Gleaner, March 3, 2017, 'UWI lecturer calls for change to the Noise Abatement Act']. The act was passed by the Parliament of independent Jamaica in 1997 and says nothing aimed at targeting 'the people's' entertainment specifically, whoever these people are.
The act covers political meetings, public meetings that would include religious services and organised entertainment events, noise from private premises and public places which "is reasonably capable of causing annoyance to persons in the vicinity".
It regulates sound volumes and duration into the night. Contravening the provisions of the law is regarded as "violating the public peace".
The law specifies that permission must be obtained from the superintendent of police in charge of the division at least 10 days in advance for any public entertainment event "where such music is reasonably capable of disturbing any person occupying or residing in any private premises".
Liabilities are attached to the owner of the premises and equipment causing the violation. The penalties are a little more substantial than the Tesha Miller fine, ranging from $15,000 at first offence to $50,000 at third or more offence. Not particularly heavy, even in 1997 dollars.
The Dub Club event was, apparently to the police, in breach of the permit requirement of the law, in the first instance. Allies of Karlyle Lee have claimed that he had indeed been granted a police permit but could not produce it. They further argue that the police had alternative means to check within the force whether the permit had been approved. But that's beside the point. What Ms Grange has failed to acknowledge in her comparison with carnival is that such events may have conformed to the requirements of the law, a law seeking to balance the rights and freedoms of all parties, or organisers should have been prosecuted as well.
One of the colonial legacies humbugging 'the people' as they seek to carry on the culture, entertain themselves, and do as they please, even if it offends non-people and restricts their rights and freedoms, is the notion of the rule of law, which 'people' spokesperson and officer of the Government of Jamaica, Minister Olivia Grange, dangerously seems willing to circumvent.
The explanation of the rule of law from the UN is a good one among many, including that of the great A.V. Dicey in his 1885 Introduction to the Study of the Law of the Constitution. The UN statement says the rule of law is "a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards".