What the new Emergency Powers Regulations mean for you

The revised Emergency Powers Regulations governing the state of emergency (SOE) in St Catherine has broadened the circumstances under which an individual may be arrested and detained or may be asked to leave their communities because of perceived threats to public safety.

Following a recent ruling by the Full Court that aspects of the St James 2018 regulations were unconstitutional, the Government had promised to review the latest regulations with a view of ensuring that disputed clauses would not infringe rights.

However, the changes that have been made appear to cover mainly two regulations: 22, which refers to the force's power to restrict access to any area, and 30, which relates to the power of detention and arrest.

Regulation 30, which deals with detention orders, was also slightly adjusted.

In the previous November 2021 regulations, Regulation 22 had authorised a competent authority to prevent a citizen who is suspected of acting, or of having acted, or about to act in a manner that is prejudicial to public safety, the supply or distribution of any necessity of life or the preservation of the peace from entering or residing in an area covered under the SOE by an order.

The order that is made, however, must specify the area in which the person must not enter or reside and the length of time.

But in the revised regulations, it now confers those powers on a police officer not below a superintendent and a Jamaica Defence Force officer not below a major to act once there are reasonable grounds to suspect that the person is committing, has committed, or is about to commit any offences under the Criminal Justice (Suppression of Criminal Organizations) Act; a number of offences under the Firearm Acts, including possession of firearm and ammunition and use of imitation firearm, extortion, any offence under the Law Reform (Fraudulent Transactions) (Special Provisions) Act; murder-related offences under the Offences Against the Person Act, as well as shooting with intent and kidnapping offences.

Additionally, the authorised security officers may also restrict access to a person who is also suspected of being involved in the preparation, instigation, or facilitation of any of the named offences.

TIME LIMIT On ACCESS

Similarly, where an order is made, the affected person, if residing in the area, must be told how long access will be restricted, the specific area in which he or she is not to enter or reside, and the time frame in which he or she must leave an area.

But the period for which a person's access is blocked must not exceed 14 days.

In relation to Regulation 30 under the 2021 regulations, any person may be arrested without a warrant or detained pending queries (1a) where it is reasonably necessary to prevent that person from committing an offense or (1b) where there are reasonable grounds for suspecting that has committed, is committing or is about to commit an offense against these regulations.

In both instances, a person must not be detained for more than seven days, except for circumstances in (1b) where a further seven-day extension must be sanctioned by a police officer not below a deputy superintendent.

Further, if a police officer, not below the rank of senior superintendent, is not satisfied that the inquiries will be done in the additional seven days, he may make an order for the person to be further detained but within the emergency period.

However, in the revised regulations, any member of the security force may now arrest a person (1a) where it is reasonably necessary to prevent such person from committing any of the previous criminal offences previously listed or (1b) where there are reasonable grounds for suspecting that the person has committed, or is committing, an offence under regulations 19, 22, 23 or 33(4).

With respect to the regulation or suspected regulation breaches, a person must not be detained for 48 hours, and if an extension is required, blocks of periods not exceeding seven days can be authorised but a review must be done at the end of each week.

This regulation also allows for the detainee to be fingerprinted and his fingerprint and other information secured to be preserved.

PUBLIC SAFETY

In the case of Regulation 33, pertaining to detention orders in the 2021 regulations, power is given to the authorised person to detain anyone, if he or she is satisfied that the person is involved in acts of prejudicial to the public safety or public order or in the preparation or instigation of such acts and believes that it is necessary to control that individual.

The person, however, may be released at any time by a senior superintendent of police based on any condition stated by the police officer, including address-based restrictions and restrictions surrounding communications or the possession or use of specified items and curfew restrictions.

However, where a person is detained under for a period of six weeks without a charge being proffered, the person shall be released or brought before a parish court judge for bail.

But in the current regulations, there has been a small adjustment to Regulation 33. It now gives the competent person the power to detain someone who has committed or is about to commit any of the earlier criminal offences listed or has been involved in the preparation, instigation, or facilitation of any of the previously mentioned offences.

All the other regulations, including 19, which criminalises the discharging of a firearm and ammunition as well as the use of a stick, stone, and missile to endanger someone's safety. Regulation 20, giving the competent authority permission to order a person within the SOE area not to carry a gun or any tool, remains unchanged.

Other noted regulations are 21, which gives a competent authority to order everyone within the SOE area to remain indoors between specified times and for permission to be given to those who would need to be outside their homes.

Regulation 34, which gives the security force power to arrest a detainee who had fled the community or a person who was charged and absconded bail.

Regulation 38 provides for the establishment of the Emergency Powers Tribunal, which is to review cases of detention and restriction.

Where a person is detained or that person's freedom of movement has been restricted by virtue only of these Regulations (including any person against whom an order is made under regulation 22 or who is detained under regulation 33), that person may make an objection to the tribunal aforesaid and whether or not any objection is made under paragraph the matter shall be reviewed by the tribunal within seven days after the date of the detention, and thereafter at intervals of not more than six weeks after the previous review. 

Revised rules still threaten citizens' rights – JFJ

Jamaicans for Justice (JFJ) has also raised concerns about specific clauses in the revised regulations.

JFJ Executive Director Mickel Jackson said that her observations suggest that breaches remained in regulations 28, 29, 30, 33, and 38.

“They are overly broad and can cause innocent citizens to have their fundamental rights unjustly abrogated, abridged, and infringed. We believe these regulations may be contemptuous of the court's ruling about this matter,” the executive director added.

She cited Regulation 29, which compels a citizen to incriminate himself or herself if being questioned by the security force – a breach of the constitutional right to remain silent.

Jackson further pointed out Regulation 33(4) as troubling. It empowers a senior superintendent, following the release of a detainee, to impose restrictions curtailing freedom of movement such as the individual remaining within his home or community, and restricting persons with whom they can communicate.

“This runs contrary to a just criminal justice system, as these powers are ordinarily bestowed upon the judiciary,” Jackson told The Gleaner.

She added that the SOE has had a devastating impact on the lives of many. More than 10,000 people were detained under the 2018 SOE and less than five per cent were charged.

“There was loss of livelihood and medical challenges. We must also never forget the report of the public defender on the SOE which noted mass detention of children in the overcrowded and shameful conditions at the Freeport Police Station lock-up,” Jackson said.

The JFJ executive director also expressed extreme disappointment that the Government had announced the SOE in St Catherine on June 17 without publishing the regulations at the time of its declaration.

JFJ also highlighted that notwithstanding the recent announcement that no one has been detained under the Emergency Powers Act, the State's failure to outline the establishment, composition, or location of the Emergency Powers Review Tribunal was troubling.

She said to date, the country is still unaware of the tribunal's membership.

Further, Jackson said if the SOE is to remain in effect and possibly be extended, its composition and registry should be published so detainees can make their objections known.

On June 17, the High Court upheld the challenge brought by St James resident Roshaine Clarke against the 2018 state of emergency imposed on the parish and declared the Emergency Powers Regulations unconstitutional.

The court ruled that the security measure infringed on Clarke's rights under the Constitution and he was awarded $17.8 million in damages.

Clarke, who was in custody for 263 days without charge, had challenged his detention on the basis that his human rights were violated.

The court held and declared that Emergency Powers Regulations 22 and 32 (in respect to the fundamental right of freedom of movement) and Regulations 30, 33 and 38 (in respect of the fundamental right to liberty) breached the Charter of Fundamental Rights and Freedoms of the Constitution.

The regulations were declared unconstitutional by the court as it said they gave the authorities unduly unfettered power to abrogate the fundamental rights of a wide class of persons in society without evidence establishing that they were reasonably justified for achieving the purposes of the state of emergency.

The court also found and held that Clarke's fundamental rights and freedoms under the Constitution – his right to liberty, his right to be informed of the reason for his detention as soon as is reasonably practicable and his right to be brought forthwith or as soon as is reasonably practicable before an officer authorised by law or a court – had been violated and that he was entitled to damages as redress for those violations.