Thu | Oct 18, 2018

Gordon Robinson | Emergency! What emergency?

Published:Sunday | September 30, 2018 | 12:00 AM
Members of the Jamaica Defence Force and the Jamaica Constabulary Force carry out a spot check on Greenwich Road on September 23 under the state of emergency in three sections of Kingston.

So, now, Jamaica is said to have declared a third state of emergency (SOE).

Like the first two, it has been widely welcomed as a much-needed crime-fighting tool to address the mayhem being visited upon citizens by inordinately high crime, and especially murder rates. Citing statistical successes from the first two SOEs in the form of reduced murder rates, Government seems intent on 'extending' SOEs well beyond what ought to be considered necessary for these extraordinary powers to be effective or even safe.

Lost in a chimera of short-sighted popularity sweeping affected communities is the danger posed to citizens by the SOEs' human-rights implications. Although murder rates in the areas immediately affected and, therefore, also national murder rates are markedly down (thankfully), it's not yet apparent that professional murderers or organised crime syndicates have been significantly restricted. I suppose this unpublished failure of the SOEs could be at the root of repeated 'extensions'.

Some of us prefer to take a closer look at the use of these extraordinary measures and their alleged effectiveness. An unemotional analysis must first seek to identify whether Government is acting lawfully or even rationally and, if so, whether the strategy is effective or sustainable. There's no other standard by which to measure policy success.

First and foremost, let's debunk a popular misconception. The Constitution doesn't permit the prime minister to 'declare' an SOE as has been reported by multiple media outlets a week ago. The PM may, of course, as he did a week ago, announce that an SOE had been declared by the governor general (GG), who is permitted to do so by the Constitution only where the GG "is satisfied" that Jamaica is at war with a foreign state; a natural disaster (e.g., earthquake, hurricane) has occurred (not expected to occur); or "that action has been taken or is immediately threatened by any person or body of persons of such a nature and on so extensive a scale as to be likely to endanger the public safety or to deprive the community, or any substantial portion of the community, of supplies or services essential to life".

The extraordinary nature of an SOE is no more clearly or emphatically transmitted to citizens than by this constitutional provision separating the governor general from his rubber stamp, releasing him from his otherwise ceremonial duties, and placing a decision regarding government policy exclusively within his remit. Usually, a GG is constitutionally mandated to act on "the advice of the PM" or "on the advice of the PM after consultation with the leader of the Opposition". But, before any SOE can be declared, government MUST "satisfy" the GG that one of these exceptional conditions exists.

High crime rates don't form any basis for an SOE. High murder rates do NOT form any basis for an SOE. Regarding the constitutionally relevant option:

1. "that action has been taken or is immediately threatened by any person or body of persons ... ".

Especially in the context of the other two foundations for SOEs, it is pellucid that Government must prove to the GG that some specific "action" has been taken against the State by an individual or a "body of persons". Now, although a gang is definitely a "body of persons", an islandwide proliferation of gangs and their antisocial conduct does NOT amount to "action" by a "body of persons". The word "any" is singular in nature and meaning. A body of persons is a specific group of people who are together or connected in some way. For example, the 63 MPs would form a "body of persons". Cabinet is "a body of persons". A terrorist cell would be a "body of persons".

2. "... of such a nature and on so extensive a scale as to be likely to endanger the public safety ...".

Obviously, this type of "action" doesn't include criminal action that can and should be addressed by regular policing. There must be a special "nature" beyond ordinary crime, and the scale of it must be more than just "extensive". It must be "so extensive" as to "endanger the public safety".

What's "public safety"? Is it any different from "safety of the public"? The latter is at risk daily from violent criminal attacks against individual citizens. The former refers to the welfare and protection of the general public, which can be endangered by attacks on the State or its agencies whose responsibility is the welfare and protection (safety) of the general public, as well as individual citizens. Attacks on "the public safety" come from external sources (war or natural disaster) or internal sources like terrorist cells or attempted coups.

As I've written previously, the May 2010 SOE was justified because it was triggered by the barricading of an entire community by violent criminals as hostile action against security forces to prevent them from entering as well as terrorist-style firebombing of police stations.

The need to enforce regular criminal laws against criminals shouldn't justify the declaration of an SOE. So, the failure of regular policing to curb crime partly because of JCF limitations can't justify an SOE unless the nature and extensiveness of the threat would require more than normal law enforcement. THREE declarations is an embarrassing confession of ineptitude, confusion, and desperation.

3. "... or to deprive the community, or any substantial portion of the community, of supplies or services essential to life"

None of the communities affected by these SOEs have complained about any such deprivation. In fact, enterprises within these communities have complained that they're losing business as a result of the SOEs and asked for relaxation of onerous opening hours' restrictions.

So, apart from an admission that law-enforcement agencies are defeated, there seems no reason for the imposition of these SOEs. In that regard, media, one of Jamaica's last two bastions of protection against government excess, should be pressing the GG to disclose exactly what "satisfied" him that the constitutional conditions for these SOEs existed. Is it that he was convinced, or was he simply "advised" and hurriedly whipped out his rubber stamp?

This underlines the separate roles of media and judiciary in the protection of citizens' rights and why freedom of the press should be specifically included in the Charter of Rights. The judiciary can't look behind a GG's proclamation that he's "satisfied", but media, on citizens' behalf, can and should.

According to The Gleaner, PM (perhaps inadvertently) admitted that the SOEs were simply tools for fighting high crime rates, NOT the extraordinary threats they were intended to address. He was quoted, at last Sunday's press conference, as saying:

"The Government considers it necessary to use the extraordinary powers provided for within the state of public emergency to address LONG-STANDING CRIME AND PUBLIC-ORDER ISSUES [my emphasis] ... ."

This is NOT authorised by the Constitution. DID THE GOVERNOR GENERAL AGREE WITH THIS?

The Opposition's cooperation isn't something Government or the GG can cite as justification. In my opinion, the Opposition has no alternative, on this most sensitive national security issue, but to support Government's decision. It has done what it can to warn the Government in particular, and Jamaica in general, of the policy's unsustainability and counterproductivity. But unless bad faith can be proved, Government's national-security policy shouldn't be blocked.

So, this rush to extremes, despite the spirit and intent of the conditions requiring such a drastic remedy being absent from actual realities AND likely long-term adverse consequences, is 100% on Government. Even more so, it's on the GG, who is obliged to tell us why he went along in circumstances when the correct response was to focus national resources on social interventions, including education and modernising the JCF's crime-fighting techniques.

Instead, Government seems intent on papering over its deficiencies and kicking the 'cure-it can' down the road with inappropriate excesses like SOEs. As usual, we have everything ass backwards.

Many of us over the age of (mumble, mumble) have repeatedly been there, seen this. For example, The Suppression of Crimes Act passed in a panic in similar circumstances as a temporary measure, greeted, at the time, with an identically simplistic, thoughtless euphoria as now, and kept in force for 25 years, destroyed the ability of a generation of policemen to address crime other than with brute force. And ignorance!

We're in danger of brainwashing another set of policemen that policing is best effected under faux emergency powers. So I was happy to see the PM reportedly assuring us: "It's not just the states of emergency on which Government is relying. Government is improving its regular policing. It's improving its intelligence. It's improving its surveillance capabilities, and we are making a major impact on crime." We'll see.

Peace and love.

- Gordon Robinson is an attorney-at-law. Email feedback to columns@gleanerjm.com.