Wed | Oct 23, 2019

Bert S. Samuels | Permanent state of emergency?

Published:Sunday | September 15, 2019 | 12:26 AM

My doctor recently explained to me that tachyphylaxis is the rapidly diminishing response to successive doses of a drug, rendering it less effective. It immediately struck me that the states of emergency (SOEs) have met a similar fate.

In St James, for example, there were SOEs in place for most of 2018, and again since April of this year. In Norwood, St James, on September 7, 2019, gunmen – in the face of the SOE – shot and killed a six-month-old infant who was secured in the safety of her home!

We must concede that the men and women of the security forces, who we rely on during recurring SOEs to detect and capture criminals, have become bone weary.

From a legal point of view, there are compelling arguments that there is no support, under our Constitution, for the declaration of SOE based on a surge in crime. Attorney Gordon Robinson, for example, writing in the wake of the third declaration of the state of emergency in St James, in September 2018, reasoned:

“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 (Jamaica Constabulary Force) limitations can’t justify an SOE.”

He then went on to opine:

“Three declarations is an embarrassing confession of ineptitude, confusion, and desperation.”

Gordon went on to concede that the SOE of May 2010 was justified in that it was “triggered by the barricading of an entire community by violent criminals as hostile action against the security forces to prevent them from entering, as well as terrorist-style firebombing of police stations”.

BAND-AID FIXES

It is ironic that the JCF’s limitations to effectively use regular policing, supported by a string of recent legislation creating new offences – including the anti-gang laws – are the very limitations which have made the SOEs ineffectual.

Lack of morale, long working hours, low remuneration, unacceptably high levels of resignations, along with unworkable low numbers of police to successfully detect and fight crime, are issues to be addressed before resorting to the use of SOEs.

Our SOEs are the equivalent of placing a Band-Aid on an old sore, treating it too late, and then choosing to hide its odour and sight with a plaster.

The collateral damage also has to be placed on the scale when assessing the net value of SOEs. Recently, the head of the Chamber of Commerce for Portmore, reacting to shortened business hours created by the SOEs declaration, confessed that businesses cannot remain viable if those restrictions remain in force for three months. He said the geographic areas designated to be covered by the SOE in St Catherine needed to be intelligence-driven, rather than applying an insensitive broad-brush approach.

FORCED SACRIFICES

So not only is the liberty of our citizens taken away by SOEs, but also their livelihood. No citizen can seek refuge in the courts, during an SOE, for wrongful detention or unjustified searches. No citizen can be compensated for the collapse of their business under an SOE. Those vendors who feed their communities after 8 p.m. have had to lock shop and go out of business. These are the sacrifices Jamaicans are forced to make, which were never contemplated by the Constitution to go beyond weeks – let alone in perpetuity – under what has become our permanent state of emergency.

We all have a vested interest in living in a peaceful and safe country. We must only be made to give up our guaranteed rights, when that trade-off is based on long-term policies that address the plight of young, idle, and hopeless men, in particular, which prioritise social intervention above the lock-them-up approach.

- Bert S. Samuels is an attorney-at-law. Email feedback to columns@gleanerjm.com and bert.samuels@gmail.com.