Sat | Dec 15, 2018

Orville Taylor | Emergency powers? Immunity could kill you, too

Published:Sunday | April 15, 2018 | 12:00 AM

Here is a wake-up call. Parliament is ultimately the source of law in this country. It matters not how learned m'lord or m'lady is or how much law an attorney knows. What Parliament says goes, and that even supersedes the Constitution.

Worse, law is such a damned imprecise science or art that, more often than not, in matters that go to trial, one attorney is making an impassioned argument that his/her interpretation of the facts is the correct one, while the other does the contrary.

Jamaica is a democracy, and with far more independence than we think. And that is the operative word - 'think' - because too often, large groups of us keep reserving our brains for future use at a date yet undetermined.

Parliament passes laws, including the Constitution. Those 63 women and men whom we have dipped our fingers in ink to insert have the power to change the Constitution, the bedrock of all our laws. Parliament determines the form and existence of the judiciary, how judges are selected, and the very composition of the Judicial Service Commission. It also outlines, ultimately, how lawyers are to be qualified.

Opinions of even the most erudite attorneys, whether prosecutors or defence attorneys, and even judges, really do not matter when the people's elected representatives pass laws, even if they pass lots of gas along with them. And yet, maybe the law is an ass, but it is parliamentarians who lead it to water, put on the donkey cooper, and feed it grass. At best, lawyers push the grass cart.

This was the reason why I suggested that Justice Minister Delroy Chuck move away from the bar, take a deep breath, and return to Parliament to discuss the INDECOM Act. After all, why would he be urging his fellow attorney to not take a decision by the High Court to the Privy Council? All of that is 'common law', where lawyers make cases that are ultimately determined by other lawyers.

 

'Settled law'

 

Indeed, that final appellate court only gives a 'binding' interpretation of what a group of lawyers, in the fluid 'science' of jurisprudence, believe is what the legislature ultimately wanted. Sometimes they get it wrong, although it then becomes 'settled law'. Simply put, the judgment of the Privy Council or our lower courts can be absolutely rubbish from a logical point of view and totally inconsistent with what the legislature intended. Thus, our houses of Parliament can simply meet and pass statutes that might be repugnant to the learned lords but consistent with what the people want.

It is this awesome power of Parliament that must be at the front of our minds at all times.Parliament's only vulnerability is its not being able to maintain an election.

In democracies, the Latin cliche vox populi, vox dei literally translates to 'voice of the people, voice of God'. Of course, that is not always true, and oftentimes, it is so much crap that it can affect global warming.

Believe it or not, there are times when a society needs critical leadership. This is particularly so when the population, totally led by hysteria, demagoguery and even pure, but popular idiocy, gets it completely wrong. The truth is, history is fraught with examples of wrong people being elected and ludicrous and socially dysfunctional statutes being passed.

 

Full support

 

It is here that the role of intellectuals, especially those in the public sphere, is paramount. In recent RJRGLEANER polls conducted by reputed researcher Don Anderson, 89 per cent of Jamaicans revealed that they have fully support the state of emergency as exists in certain parishes, such as St James and St Catherine.

Significantly, 69 per cent indicated that they would be willing to give up some of their constitutional rights in order for the security forces to come to terms with the burgeoning homicide rates. The question they answered was whether or not they would want to see a state of emergency extended islandwide.

Sixty-nine is a large number when a government is trying to succeed in holding an election. However, a popular Jamaican adage goes, 'Not everything good fi eat good fi talk'. How many of those knee-jerk respondents would be willing to put their money where their mouths are?

Most Jamaicans are not affected by the state of emergency in the aforementioned areas and west Kingston. Therefore, they can say whatever they want. It is a different thing when the military picks up you or your son en route to or from work or Bible study. To be held without explanation or charge and hidden from public scrutiny like a politician's source of wealth is not what any of the 69 wants.

Bet you that not one single Jamaican would accept that if it applied to him or her, a soldier during a state of emergency should get immunity if he kills him or his loved ones. You see, we in behavioural sciences understand the importance of empathy and taking the place of the other. Incidentally, this is what Jesus actually commands of the 80 per cent of Jamaicans who say they belong to a church.

This is the reality cheque that we have to bounce in the present matter concerning the killing of chartered account Keith Clarke by soldiers during the state of emergency in 2010.

Despite the chagrin of Director of Public Prosecutions Paula Llewellyn, my own opinion is that the judgment of Justice Glen Brown regarding the then minister of national security's legal power to give post-facto immunity to the soldiers who are believed to have killed Clarke is legally sound and is 'good law'. Whether or not it is right or just is another matter.

This is the crux, and we need to decide as a nation on what we want our legislators to enact.

Human life is sacrosanct, and whenever it is taken, it must be subject to a use-of-force policy that applies to all who have legitimate right to use deadly force. Those who do so must be subjected to scrutiny before a court.

Parliament has work to do.

- Dr Orville Taylor is senior lecturer in sociology at the UWI, a radio talk-show host, and author of 'Broken Promises, Hearts and Pockets'. Email feedback to columns@gleanerjm.com and tayloronblackline@hotmail.com.