Sun | Oct 22, 2017

Special zones of operation an 'egregiously unconstitutional scheme'

Published:Monday | June 26, 2017 | 12:00 AM
Senator Mark Golding.
The police on foot patrol.
Members of the security forces on patrol during a curfew in West Kingston.
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Declaring crime a national crisis, the Opposition People's National Party (PNP) has declared that the country's response must not be undermined by partisan political point-scoring. As a result, the Opposition has stated that it will support the Government in any lawful measure that is calculated to address the major challenges that drive the crime problem. However, Mark Golding, opposition spokesman on justice, has outlined a host of concerns around proposed legislation for the creation of special zones of operation.

 

The major challenges driving up Jamaica's high level of murders and other major crimes

 

- Insufficient diligence in case preparation by the JCF, which often contributes to the delays in the court system.

- A lack of focus on gathering credible intelligence and admissible evidence for tackling serious crime, which is the most effective way of tackling it in a democratic society.

- A police force which is undermanned by international standards.

- Insufficient use of technology to aid in crime fighting, and poor mobility capacity within the JCF.

- The message of impunity which results from the low conviction rates for serious crimes (only 50 per cent - 60 per cent in the Circuit Courts, and a shocking 30 per cent in the Gun Court), in which the delays and inefficiencies in the court system are a substantial factor.

- Failure to implement the recommendations of the Joint Select Committee which extensively reviewed the Independent Commission of Investigations legislation to address deficiencies in its existing governance structure which concentrates, in a single individual, extensive powers of investigation and also power to prosecute, without checks and balances or any effective oversight mechanism.

- Inadequate resources to address areas of deep social deprivation, especially the plight of so-called unattached youths, those tens of thousands of young Jamaicans who the education system has failed and who are left unemployed on the corner with little real hope for the future.

- High levels of teenage pregnancy (children raising children), poor parenting skills and high levels of domestic violence, including child abuse in its various forms.

- A culture which features poor anger management skills and a quickness to resort to violence in response to perceived disrespect.

The period that a declared area will continue as a zone of special operations is initially up to two months. However, the bill gives power to the National Security Council, that secretive body that reports to nobody, to extend it for two additional periods, each of two months. So for six months, this prime minister in council can keep that area as a zone of special operations, without Parliament having any say in the matter. The area comprising a zone of special operations can be a community or a constituency or a parish, or a cluster of parishes, or even the whole of Jamaica excluding, say, Jamaica House.

Furthermore, when that six-month period is about to expire, the Government can use its majority in Parliament to extend it further, for an unlimited period, even for the entirety of its term in office, just by passing a resolution. To do this, only a simple majority is required in the House and Senate which, by definition, the Government of the day will be able to muster. So the Government is effectively guaranteed a free hand in extending this state of affairs for as long as it wants, even for its entire term in office.

 

A POLICE STATE

 

The bottom line is that this bill would allow a Government to declare virtually the whole of Jamaica a zone of special operations, and to maintain that situation for the entirety of its term of office. The bill, therefore, allows the prime minister in council to convert Jamaica into what may fairly be described as a police state, in which the rights of our citizens are severely curtailed in a manner analogous to a state of public emergency, and to keep that situation in place indefinitely.

The regime under this bill can even be brought into action in the run up to elections, as a cynical tool for suppressing areas where the Government of the day feels it politically advantageous to do so, thereby thwarting the right of the people to free and fair elections. The potential for abuse is obvious and unacceptable.

 

 

Opposition sceptical of ‘knee-jerk legislation’

A lack of sufficient legal powers to support effective policing is not one of our problems. The police can arrest on reasonable suspicion, and often do even when their suspicion is not based on a solid reason. Cordons can be established, to control entry and egress from an area of operations, and curfews may be imposed if the minister of national security is in agreement. If it is felt that the security forces need, in extreme circumstances, to be able to impose curfews in problematic areas for longer than the 48 hours currently allowed under the Constabulary Force Act, this may be achieved through an appropriate amendment to that Act. This would be supported by the Opposition, if the amendment includes well-designed procedural mechanisms to ensure accountability through parliamentary oversight, and to protect the rights and freedoms of persons living in these communities.

The Opposition is therefore sceptical about knee-jerk legislation, introduced during a period of heightened national fear and anxiety due to the escalating murder rate, which seeks to significantly weaken civil liberties by adding wide new powers to the security forces. It is at times like these that some of Jamaica's worst legislative mistakes have been made, including the notorious Suppression of Crime Act of 1974 and the ill-fated crime bills of 2009. We must learn from past errors, and not be intoxicated by the pall of fear into repeating them in a misguided response to the current crime wave.

The Law Reform (Zones of Special Operations) (Special Security and Community Development Measures) Bill will do nothing to address any of the real challenges that I have listed above. Instead, the bill, in the form brought to Parliament by the prime minister, will permit the creation of a situation with marked similarities to a state of public emergency, but without the safeguards that are required by our Constitution to protect our basic rights from being undermined by legislation which arrogates excessive and unchecked powers to the Executive.

The bill operates surreptitiously, by allowing the Government to create the conditions akin to a state of public emergency, without making it clear to the public and the world that this is what is happening.

 

NEGATIVE IMPACT

 

The Memorandum of Objects and Reasons in the bill betrays this modus operandi, with the telling statement that "This Act should not have the negative impact on Jamaica, which could likely occur if a declaration of a state of public emergency was made."

More important, the regime in the bill will be very amenable to far-reaching abuse. The 'prime minister in council' is given control of the initiation of the extreme measures permitted by the bill. The prime minister in council is a new concept, and refers to the prime minister presiding over the National Security Council. The National Security Council is a committee comprised of the prime minister, a few other ministers of government, and the heads of the security forces. It meets behind closed doors, and its proceedings are highly confidential. There is therefore no transparency in its deliberations, or oversight of its decisions.

The bill will allow the prime minister in council to make an order declaring any geographically defined area within Jamaica as a 'zone of special operations'. While it says that the entire island of Jamaica cannot be declared a zone, this would theoretically allow the entire Jamaica, other than say the Jamaica House property, or the area comprised of a circle with a radius of 10 metres around Blue Mountain Peak, to be declared a zone of special operations. The people's representatives in Parliament have no say. Cabinet has no say, as the power is given to the prime minister in council, an organ not recognised by the Constitution of Jamaica.

 


What is permitted in these zones of special operations?

For the first time, members of the Jamaica Defence Force (JDF) would have police powers, making soldiers into police constables.

While the use of the JDF to support police operations has become necessary in Jamaica's stressed security environment, the clear legal separation between soldiers and police has been absolutely important in maintaining the professionalism of the JDF as a military organisation. Allegations of abusive conduct by JDF soldiers have, happily, been rare in comparison with the Jamaica Constabulary Force (JCF). Giving police powers to JDF members in these zones effectively abolishes that important line of differentiation, is not driven by any compelling need, and is a bad idea.

Any policeman or soldier can search any person or place or vehicle without needing a warrant. Therefore, every citizen in the zone, no matter how decent and upstanding, is exposed to being searched personally and having his home or her vehicle searched by any policeman or soldier without the protection that the requirement of obtaining a warrant provides. This ought to be a point of concern for each and every person residing in Jamaica. It is an all too common sentiment when repressive measures are proposed for some segments of society to support it on the basis that only those who live in certain economically depressed areas are going to be affected by those measures. It must be remembered, however, that we already saw, during the events of May 2010, that a residential address located in Upper St Andrew does not guarantee immunity from the invasive actions of the State.

Any policeman, from the lowest rank upwards, is given the right to seize any document, vehicle or article in the zone. It can be your passport, your voter ID, your phone, your laptop, your car, your land title, or, indeed, anything at all that is not a tool of trade. There is no need for a warrant or other safeguard. And once your documents or properties are seized, there is no procedure in the bill for getting them back, if the security forces in the zone choose not to return them to you.

 

UNCHARTED WATERS

 

The law allows arrest or detention on suspicion that an offence has been or is about to be committed. The bill extends this basic position into uncharted waters by allowing a person to be arrested or detained if the officer in charge of the zone considers that there is "reasonable ground for the arrest or detention". This does not require any connection between the person and any criminal act. The grounds may be other unspecified considerations. This formulation clearly violates the rule of law.

Curfews can be imposed by a decision of the "Joint Command", which means a major of the JDF and a superintendent of police. The need for approval by the minister of national security, an elected and accountable official, is abolished in these zones. Not only does the bill remove this procedural safeguard in relation to imposing curfews, it also extends the period for which a curfew can be imposed, from 48 hours to three days.

Having created all these extraordinary powers, the bill then seeks to put limits around them by various recording and other bureaucratic requirements that will be burdensome for the security forces to comply with and which, I strongly suspect, will be largely ignored.

The provisions in the bill for the establishment of social investment committees in the zones are mere window dressing intended to give the appearance of a balanced approach. The bill does not request these social investment committees to be provided with any resources to tackle the social deprivation within the zones, and provides no powers to these committees to require that required resources are provided. These committees are being set up to become mere talk shops, given a basket to carry water, and unable to affect any real changes in these communities.

The overall scheme cooked up by this bill is, in my view, egregiously unconstitutional.

Jamaica's Constitution does not contemplate the suspension of basic civil liberties in areas which may be small or very large, for lengthy periods or, indeed, indefinitely if the governing party so wishes, all at the behest of a covert, unaccountable body like the prime minister in Council.

 

Attorney general not objective in constitutional considerations

When this bill is passed, and before it goes to the governor general for his assent, it must be certified by the attorney general as being compliant with the Constitution. This is an important safeguard, requiring the senior legal officer within the Government, who is "parens patriae" (the guardian of the legal rights of the people), to certify that legislation which Parliament is seeking to enact does not violate the Constitution. However, in this case, the attorney general is one of the chief architects of the bill, and a staunch promoter of its virtues. It, therefore, appears that the society will be denied an objective consideration of the constitutionality of this extraordinary bill before it is sent to the governor general for his assent. This is, indeed, a curious and undesirable state of affairs, which was foreshadowed in the attorney general's Sectoral presentation to Parliament on July 5, 2016, when (as reported by the Jamaica Information Service) she said: "To successfully tackle the murder problem, some of the fundamental rights and freedoms which we have guaranteed to our people may have to be abrogated, abridged or infringed because the evidence we are examining convinces us that such action may be demonstrably justified in this free and democratic society."

 

Opposition cannot support bill as is

I consider this bill to be, by far, the most dangerous legislation to have been initiated by any Government in Jamaica since I entered Parliament in 2007. The bill does not address any of the real issues that need to be solved if we are to get on top of our national crime problem. On the other hand, it facilitates the imposition of a regime involving the deprivation of basic rights by a procedure which provides effectively unchecked powers to the Government of the day and allows this to continue for as long as the Government wishes.

For these reasons, I cannot support this bill in its current form.

In light of this, the reader may ask: So what does the Opposition support as legislative action? Having passed the DNA legislation in 2015, we await the regulations that are urgently required to make it actionable, and we await the legislation to provide MOCA with a solid legal framework. We also support the pipeline of legislation that we left in the Ministry of Justice to strengthen the justice system, including the recently passed plea bargaining act and the two bills tabled by Minister Chuck this week, one of which will eliminate various anachronistic jurisdictional rules that often prevent the various offences arising from a particular crime being tried in the same proceedings, and the other to empower the court to order convicted persons to compensate the victims of their crimes. The Opposition is fully on board with all constitutional, sensible and workable solutions that address the real issues that confront the nation in relation to national security.