Letters to the Editor

Gov't cannot seek to uphold the rule of law by breaking it

Thursday, December 20, 2018

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Dear Editor,

The recent decision of the Opposition in the House of Parliament to withdraw its support for the three states of emergency (SOE) has unsurprisingly become centre of public attention.

Dr Peter Phillips argued that the Opposition was, at the outset, in favour of the SOEs, but was never in support of them being continued indefinitely through extensions.

A recent poll conducted by Don Anderson indicates that the overwhelming majority of persons directly affected by the SOEs are in favour of the extensions. The commonly expressed view is that it has effectively reduced crime and they feel safer with the increased police presence. So, is it enough that the SOEs should be extended simply to comply with the wishes of the civilians most closely affected by them?

Declaration of an SOE is an exceptional recourse available under the Emergency Powers Act of 1939. The Act provides under an SOE for the creation of regulations as appear necessary for “securing the public safety, the defence of Jamaica, the maintenance of public order…” By use of these regulations extraordinary powers are conferred upon the State. Not least of these powers is the ability to “make provision for the detention of persons…under Section 3 subsection 2 (a)”. The Emergency Powers Regulations 2018 prescribe that individuals may be detained for a period of seven days with an extension of a further seven days, where necessary. If any necessary enquiries are not able to be completed within this extension period however, the person may be detained for a period not exceeding the duration of the SOE.

The application of this power to detain a person within SOE has proven problematic person. Reports of arbitrary detention periods, inhumane conditions within detention facilities, inefficacy of the tribunal established to manage querying of detentions, among other factors, have led to questions of constitutional rights violations by the State.

In November Public Defender Arlene Harrison-Henry revealed that a total of 4,085 individuals had been detained under the SOE in St James, but police statistics show that only 153 people have been charged. This highlights that many people are being detained on no evidential basis whatsoever and held indefinitely only to be released. This may amount to the breach of the inalienable constitutional right of a person to not be deprived of liberty, except by due process under law. The Government cannot seek to uphold the rule of law by breaking it.

The argument has been put forward by the Opposition that the powers available to the Government under the SOE (with the exception of the power to detain indefinitely) are also exercisable under the Constabulary Force Act and the Zones of Special Operations (ZOSO) Act.

Dr Phillips has unequivocally stated that he is in support of more ZOSOs. Minister of National Security Dr Horace Chang, speaking on Beyond the Headlines on December 12, 2018, spoke to the difficulties of gathering evidence in order to charge criminals, hence the necessity for the power of detention under the SOE. This, however, cannot be grounds for the breaching of citizens' fundamental rights under the constitution.

An SOE is not a long-term solution to crime and should not be treated as such. It is an exceptional measure to be used on an interim basis with the implementation of various crime-fighting and policing strategies in supplementation to reduce crime levels in the medium to long term. The end of the SOE does not have to mean a withdrawal of the manpower of the constabulary and defence forces in problem areas.

If the Government is serious about sustaining the reduction of crime it will not use the rejection of the extensions as a reason to end the saturation of hotspots as clearly it has been effective. However, the infringement of the constitutional rights of citizens cannot continue.

Payton Patterson

Student, Faculty of Law

The University of the West Indies, Mona

Talk Up Yout advocate


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