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Bunting points to AG deficit as Gov’t mum on SOE ruling

Published:Monday | September 21, 2020 | 12:14 AMJovan Johnson/Senior Staff Reporter

The Andrew Holness administration says it cannot comment substantively until it gets the official written judgment of a Supreme Court ruling that has shaken a national- security establishment now dependent on states of emergency (SOEs) to help crime-fighting.

In the meantime, former opposition lawmaker Peter Bunting is asserting that last Friday’s judgment “highlights a continuing gap in the legal capacity of the Holness administration”.

Bunting, national security minister in the Simpson Miller administration, whose term ended in 2016, said that citizens should take stock of the judgment and insist that the Government put forward workable crime-control and -prevention policies.

“A state of emergency was clearly never intended to be used as an ordinary policing tool,” he told The Gleaner.

Lawmakers, too, Bunting argued, are compelled to re-examine their legislative role as “they must become more vigilant in upholding the Constitution and the rights that it affords all of us as citizens”.

With the general election out of the way, it has been widely expected that the police and army chiefs would resume their backing of the SOEs, which allow for detentions without warrants and restrictions on movement.

Holness has consistently said that he was acting on the security chiefs’ advice even as he admitted that normal policing was insufficient for curbing the scale of the crisis, especially with murders hovering around 40 per 100,000 of the population, well above the global average.

Bunting, unlike most of his then opposition colleagues, consistently voted against SOE extensions granted after December 2018 – the only time the Opposition did not vote in support of the measures.

He has argued that the measures were unconstitutional in how they were being used and even questioned their effectiveness given increases in murders in 2019 over 2018, for example.

The authorities have countered, arguing that murders have dipped in the majority of police divisions where SOEs were declared.

Though noting that he understands the “fear and challenges” from the high crime rate, the former national security minister asserted that “systemic overreach of Government’s powers is likely to make the problem more protracted ... . Our crime challenge will only be solved by policies that address the economic and educational state of our people.”

Bunting also asserted that it was troubling that government lawyers could not justify a state of emergency before the court except to reference the declaration by the governor general.

National Security Minister Dr Horace Chang said on Saturday that he could not comment on the ruling that has gone in favour of five men – Courtney Hall, Everton Douglas, Nicholas Heath, Courtney Thompson, and Gavin Noble – who were detained for between 177 and 431 days without charge.


While they were released when the SOEs came to an end in August, the ruling has gone beyond their case to question the extent to which fundamental rights are threatened by the Government’s use of provisions under SOEs, which are permitted by the Constitution.

“The situation which led to the detention of the objector does not qualify as an emergency ... . The claimant’s constitutional rights and the Constitution itself is (sic) being breached by the current detention and executive detention system,” wrote Justice Bertram Morrison in a draft written judgment released last Friday when the judge gave his oral decision.

Justice Morrison also declared that the Emergency Powers Act and the subsequent regulations that operationalise the law do not apply to the current Constitution since they make reference to a section that has since been repealed or to laws no longer in use.

“I won’t comment on it now,” Chang told The Gleaner.

“They (government lawyers) got a verbal comment in court, and they’ve seen a draft document, which is not the judgment.”

“It’s dangerous to comment on something like that because there are legal issues of all kinds of implications,” the minister added.

Attorney General Marlene Malahoo Forte also declined comment at this time.

However, a post from her Twitter account on Saturday might be construed as a veiled opinion on the ruling. She tweeted: “Many ideas of freedom fail because they do not realise the true nature of our captivity.”

Reacting to reports from the detainees’ lawyers in July, the attorney general suggested that judges may not be using the law to make their decisions.

“If ever our #CourtsofLaw cease to be guided by, or apply the law and instead become courts of public opinion, special interest, personal interest or anything less [than] therein lies the biggest threat to our democracy!” she tweeted then.

After public outrage grew, Malahoo Forte later issued a clarification, saying that it was “regrettable” that her comments were interpreted to be an attack on judges.

Back in July 2016, the attorney general told the Parliament that some “fundamental rights and freedoms guaranteed to Jamaicans may have to be abrogated, abridged, or infringed” to address the country’s crime problem.

This is the second court ruling in just over year that suggests that the Government may be struggling to situate major security policies in the “new paradigm” introduced in 2011 by the Charter of Fundamental Rights and Freedoms, which requires the passing of a steep test before rights can be infringed.

The total number of people detained throughout the period of the SOEs is unclear, but crude aggregates suggest that more than 4,000 mostly young men from mainly inner-city communities were held without warrants, as is allowed under the emergency measures.

Attorney-at-law Wentworth Charles, who represented the Ministry of National Security in the case, said the judgment should be appealed.