Sun | Jul 25, 2021

Editorial | Justice Sykes should expedite SOE transcript

Published:Wednesday | June 23, 2021 | 8:12 AM

Justice is supposed to be blind and even. But no one would mind if Chief Justice Bryan Sykes has a peek, tips the scales a bit, and causes the Supreme Court to urgently produce the transcripts from the case in which Justice Bertram Morrison ruled last September that Jamaica’s Emergency Powers Act (EPA) is unconstitutional.

The island’s attorney general, Marlene Malahoo Forte, suggested this week that the absence of these records of proceedings is hampering the Government’s preparation as well as delaying the appeal court’s hearing of the administration’s challenge of the judgment.

“...We have signalled that we would like the matter to be heard expeditiously, that we would like the matter to be considered expeditiously, given the criticality of the measure to the State and what is happening in Jamaica,” Mrs Malahoo Forte said.

This newspaper supports the attorney general and joins her “bemoaning” that the court hasn’t prioritised the delivery of the documents. That, though, is not because we necessarily share the administration’s apparent position that the declaration of states of public emergency provides the only, or most efficacious, tool for confronting Jamaica’s problem of criminal violence. There are fundamental issues of constitutional law to be settled in this matter, made more compelling by the Appeal Court’s rulings this month in the Satterswaite case, which touched on how citizens might seek constitutional relief from the courts, and the circumstances in which they might not have to file specific motions in the Constitutional Court.

The specific issues to be addressed in the case notwithstanding, the authority to declare, and sustain, a state of public emergency (within the boundaries of the Constitution) is an important power that a government should have.

THE RULING

In the circumstances, it is important to resolve whether the old law that was used to give expression to those powers became obsolete when Jamaica, in 2011, enshrined its Charter of Fundamental Rights and Freedom, and if new legislation is needed. We suspect that any decision by the Court of Appeal won’t be the final one. The matter, eventually, will be settled at the Privy Council.

For more than two years, until they were lifted just ahead of the September 2020 general election, the Holness administration declared and enforced states of emergency across several parishes – a critical tactic in its crime-fighting strategy. Indeed, Prime Minister Andrew Holness had argued that Jamaica, with more than 1,300 murders annually and a homicide rate of over 47 per 100,000, states of emergency would probably have to be in place for up to seven years – his timeframe for bringing Jamaica’s murder rate in line with those of its Caribbean peers.

It was therefore expected that after the election the states of emergency would be reimposed. But then came Justice Morrison’s ruling in a case in which three men, detained for between 177 and 431 days, went to court demanding their release – essentially a habeas corpus matter; however, Justice Morrison gave a sweeping ruling. He held the EPA to be unconstitutional.

The law made reference, he said, to a section of the Constitution that was repealed, but without a saving clause to give it continued effect. The EPA did not qualify as a law for the purposes of the section of the Constitution that provides the basis on which people can have their freedom of movement restricted. The judge also argued that the regulations governing the states of emergency were crafted on the basis of an unconstitutional law. Moreover, regulations purporting to give the security minister the authority to sign detention orders impinged on the constitutional separations of powers between the executive and the judiciary.

CRACK THE WHIP

Some lawyers have argued that a number of key issues upon which Justice Morrison pronounced should have been specifically pleaded at the Constitutional Court, utilising different rules, an issue addressed in part, in the case of Dawn Satterswaite, a lawyer who had accounts frozen under the Proceeds of Crime Act (POCA), allegedly for facilitating money laundering.

Satterswaite argued that being restrained from access to her money and the law’s prevention of those resources being used to pay lawyers was an infringement of her constitutionally guaranteed right to a fair hearing. Prosecutors argued that the argument represented a quest for constitutional relief that should properly be brought to the Constitutional Court, under other rules. However, in its judgement, the Court of Appeal held that Rules of Court notwithstanding, “in light of the supremacy of the Constitution and the court’s role in interpreting and giving effect to its provisions and enforcing its guarantees, the Supreme Court should not shrink away from resolving questions that concern a litigant’s constitutional rights that might arise otherwise than by way of an originating motion”.

Yet, with respect to a request by Satterswaite and her husband, Terrence Allen, to declare Section 33(4) and 33(5) of POCA unconstitutional, the Justices ruled: “Any declaration that those sections are unconstitutional should be pursued by way of motion/claim, under Section 19 of the Constitution of Jamaica, for constitutional redress.”

Whatever may be the Appeal Court’s verdict on EPA, it’s a matter that deserves urgent attention, which can’t happen unless the record of proceedings is available. But the Supreme Court is notoriously slow at this. For instance, the Appeal Court, according to its published performance statistics, ended 2020 with 463 records outstanding in civil matters before it. The number for criminal cases was 371.

Justice Sykes needs to crack the whip on this matter.