PNP fears costs to taxpayers for unconstitutional SOE regulations

The Opposition People's National Party (PNP) says the government may have exposed taxpayers to payments of millions of dollars to citizens who were detained under unconstitutional states of emergency (SOE) regulations. 

"The Opposition has long maintained that the way in which the Government has been using SOEs since 2018 has violated the Constitution, and this has now been definitively confirmed," the party said in a statement this afternoon. 

It was referring to today's decision of the Constitutional Court, which ruled in favour of a lawsuit brought against the government by St James taximan Roshaine Clarke over his detention under a state of emergency declared in the parish in 2018.

He asserted that his rights were breached. 

The court awarded him approximately $18 million, which the government has to pay. 

A state of public emergency allows the security forces, or authorised persons, enhanced powers of search and arrest and limit the right of detained persons to due process.

The judges said regulations under the SOE that dealt with the right of freedom of movement and right to liberty "breach the Charter of Fundamental Rights and Freedoms of the Constitution".

"These regulations were declared unconstitutional as 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 three-member panel ruled. 

The Opposition said the monetary award "speaks to the magnitude of the State's potential liability where thousands of young people could become claimants in similar cases, at a cost that would be borne by the Jamaican taxpayers". 

"We reiterate that there are already extensive and sufficient existing legislative tools available to law enforcement to get a grip of the crime situation in the country, but the national security situation is being mismanaged by the Government," noted the party statement from Spokesperson on Justice and Information, Senator Donna Scott-Mottley.  

Using police statistics, the Office of the Public Defender told a parliamentary committee in January 2019 that nearly 4,000 persons were detained in the St James state of public emergency, with only  four per cent being charged, mainly with minor offences.

Meanwhile, the PNP says the government has a duty to allocate significant resources  to strengthen the State's response to bail applications and prepare prosecutions of serious criminal cases to protect victims by making the criminal justice system "an effective deterrent to wrongdoers and ensuring accountability".

The Opposition says it is open to talks with the Holness administration.

"We invite the Government to have discussions with the Opposition to find a constitutional and effective pathway to addressing the scourge of crime and violence plaguing the country, given today's guidance provided by the Constitutional Court," Scott-Mottley said. 

The government has not issued an official statement on today's ruling. 

But hours before the decision, Prime Minister Andrew Holness, in declaring a state of public emergency for St Catherine, said his government would rely on the interpretation of the courts in implementing policies. 

Earlier this week, Holness said his administration has been struggling to respond to crime because "every move we make there is some legal argument or some political argument being made about the preservation of rights". 

Holness has insisted that SOEs are necessary because of the high levels of crime in Jamaica. 

The Opposition did not give any indication on how it may vote when the time comes for the Houses of Parliament to decide whether to extend the St Catherine SOE. 

The party voted against the last such declaration. 

The government can impose the measure for 14 days but must get parliamentary approval for its continuation. 

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