Editorial | The PM’s tensions with rights advocates
Prime Minister Andrew Holness is no doubt absolutely sincere when he asserts his commitment to liberal democracy and his willingness to defend the principles of this form of government. He will, therefore, understand that many people are uneasy at his seeming ambivalence towards human rights advocates and his apparent view that robust insistence on respect for the freedom of individuals somehow compromises the ability of his administration to maintain law and order.
Or maybe the prime minister is misunderstood on the topic, including people’s interpretation of his recent comment that “eloquent pronouncements about rights” were “increasingly alienating the people from the system”. In which event he owes it to himself, and the country, at the earliest opportunity, to fully, and clearly, explain his perspectives on democracy, the functioning of a liberal democratic government, and the interplay between democratic governance and individual rights and freedoms such as those guaranteed by Jamaica’s Constitution. He should do so preferably in writing, perhaps in an essay. The prime minister should also encourage the heads of the security services, especially the police chief, a former chief of staff of the Jamaica Defence Force (JDF), Major General Antony Anderson, to do the same.
The debate over human rights advocacy, including suggestions of the need to trade, at least temporarily, some rights for security, has been driven by the Government’s employment, since 2018, of states of emergency (SOEs) as its major crime-fighting tool. The most recent of the SOEs was declared a week ago in the parish of St Catherine, which has faced a sharp rise in gang violence and murders.
In a country with over 1,400 murders annually and a homicide rate hovering at 50 per 100,000, SOEs have, generally, been popular, especially those enacted in the earlier period of their employment. In 2018, for instance, the use of SOEs in several police divisions was credited for a 20 per cent reduction in murders nationally, and by a 70 per cent drop in the north-western parish of St James, where the homicide rate the previous year was more than 200 per 100,000.
Apart from saturating communities where SOEs are in place with police and soldiers, the operating regulations provide the security forces with significant powers to arrest and detain people without the usual constitutional constraint of having to quickly take detainees before the courts for hearings or bail. But while an SOE can be initially declared for 14 days, it requires a two-thirds vote in both houses of Parliament for an extension, which caused the collapse of some of the earlier ones when the parliamentary Opposition, which was critical of their use, withdrew support.
The Government, however, insists that the emergency powers were never misused. Nonetheless, it has lost two court cases in which the judges held that the regulations under which people were detained were unconstitutional, breaching the Constitution’s prohibition against infringement on protected rights and freedoms “save only as may be demonstrably justified in a free and democratic society”. In the second of the ruling this month, the Full Court, a three-member panel of judges, held that the regulations then in force were too wide and unspecific to meet the criteria of being demonstrably justified. The claimant, who was held for several months, was awarded J$17.8 million in compensation.
In the earlier September 2020 ruling, stemming from a habeas corpus case involving five detainees, Justice Bertram Morrison additionally held that the detention powers exercised by the national security minister and under authorised persons established by emergency regulations, infringed on the separation of powers between the judiciary and the executive. That case has been appealed, including on the ground that Justice Morrison went out of bounds in ruling on the larger constitutional questions.
The tension Mr Holness harbours over the need to respect rights while responding to criminality often emerges in his remarks on matters of national security. Last November, for example, in announcing SOEs in seven communities, the prime minister asked rhetorically: “[S]hould the Government be crippled by an academic debate about the constitutionality of the measure while people in Jamaica are dying?”
Recently, as he has done in the past, declared himself an unsurpassed democrat and argued that the society could not “allow emergency or disaster to change the liberal nature of our democracy”. But at the same time, he appeared to conflate robust insistence of general upholding of individual rights with a forfeiture of the rights of victims, which, he said, was never the subject of debate.
The prime minister also claimed that the Government was often stymied in its response to criminality because “every move we make there is some legal argument or some political argument being made”.
Added Mr Holness: “Those who believe that their eloquent pronouncements about rights are finding favour with the masses of the people, what they are doing is increasingly alienating the people from the system. I do not have the luxury of dithering on these matters anymore. We have to act on them. We have to act to protect the innocent, law-abiding citizens.”
This newspaper makes two observations.
Human rights, and the protection thereof, isn’t an academic issue. Their existence and protection, as Mr Holness noted, is the essence of liberal democracy.
In that respect, rights are indivisible. One isn’t pulled down to uphold the other, even if the people for whose rights protection is being demanded may be deemed to be unsavoury characters. Once you begin to make those kinds of delineations, the door is cracked to illiberalism. Democracy, then, is not safe. That is the context, therefore, within which perceived pesky advocates of rights deserve more than tolerance, but respect – encouragement even.
Second, democracies, with their many, and often disparate, interests are messy affairs that are difficult to manage. So being tough on crime and maintaining rights, and respecting people who insist upon it, are not mutually exclusive virtues. That, we know, Mr Holness appreciates.