MICHAEL HYLTON, Q.C., the Solicitor-General, has recommended that the Government amend the Bill which seeks to grant police powers to soldiers, by way of an amendment to the Defence Act.
He said the Bill should be amended to refer "only to those powers which are considered necessary and appropriate for the exercise of the relevant duties."
Mr. Hylton made his recommendation on Monday after being asked for a legal opinion on the matter by the parliamentary committee set up to examine the proposed amendment to the Act. The matter was sent to a special select committee after the parliamentary Opposition on December 10, forced a suspension to the debate to amend the Act.
In advising Dr. Peter Phillips, chairman of the select committee examining the Act, and Leader of Government Business in the House on his decision, Mr. Hylton said: "The committee may wish to consider defining specifically the powers which a member of the JDF should be able to exercise in these circumstances." This, he said, should be done "out of an abundance of caution."
The Solicitor-General went on: "I have not found any judicial decisions definitively resolving this issue, but it is my opinion that the better view is that members of the JDF would not be able to exercise the powers of a member of the JCF (Jamaica Constabulary Force) when acting pursuant to directions given pursuant to section 9 (3)."
The Bill, which was piloted by Prime Minister P.J. Patterson, sought to give Jamaica Defence Force (JDF) soldiers the authority to search premises and apprehend persons regardless of whether members of the Police Force are present. It had sought, by way of an amendment to Section 9 of the Act, to introduce the words: "and have all such powers as may lawfully be exercised."
Edward Seaga, the JLP leader, objected, however, charging that the legislation was not properly thought out. He further argued that soldiers were not trained to operate like the police and were likely to abuse their powers.
In giving his opinion, Mr. Hylton explained that there were no provisions in Section 9 or anywhere else in the Act which gives members of the JDF any special powers when performing their functions of defending Jamaica from external forces or assisting with the maintenance of order in Jamaica.
"On a literal reading, they would have no more powers than an ordinary citizen and specifically, would not have the powers of a member of the JCF," he said.
The Solicitor-General cautioned, however, that an argument could be made that Parliament would not have provided that members of the JDF could be directed to maintain and secure public order without intending that while doing so, they would be able to exercise and enjoy such powers and privileges as are reasonably necessary for carrying out those duties. He said some of those powers need not be implied as any citizen, including a member of the JDF who sees a crime being committed, can effect an arrest.
In relation to the draft Bill, Mr. Hylton noted that there was some merit to the concern that the present language "all such powers as may be lawfully exercised was too wide." This, as it was clear from the Memorandum of Objects and Reasons of the Bill that it was not intended that all the powers of the JCF would be conferred on the JDF. "I would, therefore, recommend that the Bill be amended to refer only to those powers which are considered necessary and appropriate," he said.
With a parliamentary recess following today's sitting of the Senate, the debate on the amendment to the Act will not resume before next year. With only a simple majority needed to have the Bill passed, Dr. Phillips has already suggested that the Government would push through the Bill if there was no agreement from the opposition Jamaica Labour Party.
The Government has sought to amend the Defence Act against the background of its recently announced anti-crime measures, which rely heavily on members of the JDF. The soldiers, along with the police, have been maintaining curfews in certain inner-city communities, a move that has resulted in the recovery of more than two dozen guns, several rounds of ammunition and a general lull in criminal activity.
