Fri | Sep 24, 2021

Daniel Thwaites | State of incompetency

Published:Friday | December 21, 2018 | 12:00 AM

I want to talk about the states of emergency, but before that, I want to talk about moral standing and the class system we have in Jamaica.

Philosophers have a nest of problems they think about which have to do with moral standing, or who we give consideration to. To say that a being has moral standing is to say that it is worthy of consideration in our moral reasoning, and that its well-being is of importance, and that its value is a given. You can imagine there are supremely controversial issues about who or what has this moral standing.

This isn't a purely metaphysical puzzle for those of us who have the habit of wanting to understand why we think what we think and believe what we believe.

I raise this in the context of the states of emergency because it is abundantly clear to me that one simple fact underlines the willingness of a bunch of people to support them: fi dem pickney will NOT be scraped up by the police and soldiers, locked away for an indefinite time, and fed on $300 a day.

When will we see energetic police activity aimed at the uptown financiers of crime? Not to mention that general confidence in the police would be enhanced tremendously if we saw a series of prosecutions coming out of the 'Chucky' Brown trial and verdict.

I wouldn't call it 'class bias' so much as 'class blindness', because I don't think the voluble touts for the continued abrogation of citizen rights actually count the people being hoovered up as beings worthy of the same concern as their own families.


Yearning for Order


All the same, that's not the only factor. As a rule, when threatened with chaos, people's deep yearning for order will cause them to agree to some crazy stuff in the hope of achieving that order. That's why states of emergency and other such drastic measures are invariably quite popular.

Accordingly, the failure of the very State to police and protect citizens thereby becomes the cornerstone argument for giving the State more powers to exercise against citizens. It's a dangerous cycle, and exactly what we're witnessing.

I should say this: Just as a matter of raw political calculation, I didn't see the Opposition stepping forward and refusing to support the states of emergency. They were enjoying a good run with the latest Petroscam revelations, and there was no reason to upset that storyline.

However, I am glad for Jamaica that they decided to call out the BS and end their support of this unconstitutional business and, specifically, to reject the subterranean idea that the SOE can only end to coincide with the timing of the winter tourist season.

To me, the most telling point is that the administration has had a whole year to come up with solutions that don't rely on this most serious curtailment of citizen freedom. What have they done in that year? Where is the plan and why hasn't it been shared with the Opposition, whose votes you need in Parliament, or with civil society, whose support you need?

Look, Mr Holness is holding his own as a prime minister, and the review of his tenure so far will be the usual mixed bag. But if I were asked to identify a persistent negative stain that has permeated too many of his actions, one candidate for that would be a blase and cavalier attitude towards the Constitution.

He was part of the Golding-led Cabinet that contorted themselves to protect Dudus from legitimate law enforcement. There was that whole foul presigned resignation business. Then there's NIDS. And most egregious of all is the appointment of Malahoo Forte as attorney general. That's another slap in the Constitution's face, especially since there are so very many smart and competent Labourite lawyers who could fill the role.




Now we hear from the PM that this whole thing is to further contain some 20 criminals who he somehow knows are sources of mayhem, but the police are unable to bring a charge. What this speaks to is incompetence. And incompetence isn't cured by granting more power to the police to do as they please and arrest a whole city because you want to hold 20 men. Incompetence will be cured by training in how to bring cases that stick.

I believe the states of emergency were unconstitutional from inception, as it is nowhere envisioned that it is to be used as a tool of regular law enforcement. State failure and incompetence ought not be rewarded with a blank check of more power, and all parliamentarians who voted for them instead of insisting on proper and adequate policing did so in error.

But even if there were an argument that it was justified at the outset, it's impossible to argue with a straight face that an emergency situation still persists such that arbitrary unreviewable preventative detention of citizens is the only option for the survival of the Jamaican state.

Naturally, in the hothouse of panic, insisting that Government do its job while respecting citizens, opens one up to the charge of loving criminality. Here's an unforgettable one! Kevin O'Brien Chang asks: "Are those who give aid and comfort to murderers by voting down measures that are reducing murder not committing treason against the Jamaican State, and, by extension, its people?" Note: "treason". For insisting that we abide by our Constitution. Smart people sometimes say very stupid things.

Against that caca, I want to place the considerations of Jamaica's foremost constitutional expert, Dr Lloyd Barnett:

"You can't have hundreds of persons detained on the basis that I may one day be able to come up with some evidence to support some charge against the person".

Perhaps one of the worst aspects of these SOE is that it accustoms the police to act with impunity instead of doing good investigations and bringing cases with evidence. Is it any surprise, then, that arrests are down, arrests with evidence are down, and firearm and ammunition seizures are down?

- Daniel Thwaites is an attorney-at-law. Email feedback to