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Fishermen could sue J'can Gov't — defence attorney

BY ALPHEA SAUNDERS
Senior staff reporter
saunders@jamaicaobserver.com

Wednesday, June 26, 2019

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SENIOR defence attorney Bert Samuels says the four Jamaican fishermen who have brought a case against the United States Coast Guard alleging egregious mistreatment and human rights violations in 2017 could have a case against their own Government.

The American Civil Liberties Union (ACLU) on June 12 filed a lawsuit against the US Coast Guard seeking damages on behalf of Luther Fian Patterson, Robert Dexter Weir, Patrick Wayne Ferguson, and David Roderick Williams, who it says were “secretly detained without due process at sea in inhumane conditions on four coast guard ships for over a month”.

Another fisherman was also detained in the incident on September 14, 2017 in which the men's vessel was stopped in international waters off the coast of Haiti. According to the claim, the US Coast Guard destroyed the Jamaican-registered boat, the JossetteWH 478 and the men were held at sea for just over a month, shackled, and left exposed on the decks of multiple coast guard ships, which made stops in Guantanamo Bay, the US Virgin Islands, Puerto Rico, and Miami. The men say they were held under inhumane conditions, abused, and prevented from contacting their loved ones to inform them they were alive.

They were deported from the US last year, but foreign affairs minister Kamina Johnson Smith said the ministry was oblivious to any complaint of mistreatment.

“They were deported on a regular charter flight. They did not engage with the consular officers together as a group; it was individual. They didn't come to us at that point as persons who had been detained as a group, or in circumstances related to detention on the high seas,” she explained, adding that there were no reports of mistreatment, according to information from the various consular points,” she told the Senate last week.

The men say they were suspected of trafficking marijuana, but mainatained that no contraband was found aboard their boat. They alleged that the charges brought against them are therefore false.

Samuels told the Observer on Monday that the waiver the Jamaican Government gave to the Americans in 2017 would have to pass through what he calls “the Charter of Rights test”. The waiver was granted under the Maritime Drug Trafficking (Suppression) Act, also known as the “Ship Rider agreement”.

“We can't delegate and sign off and give away the rights of our citizens in a kind of trivial way, so it is my view that the signing of the waiver would not cause the Jamaican authorities not to be responsible for the welfare of the men, so that their treatment and conditions may be blamed on the Jamaican Government,” he noted.

The attorney-at-law insisted that for the purposes of openness and transparency there should be a structured monitoring system including photographic evidence, which allows the Jamaican authorities to verify the treatment of those detained.

“We have to remember that part of the complaint of African-Americans is that the law enforcement officers treat them less than human, and if we are going to surrender people into that environment, where African-Americans are treated a certain way by the security forces, we should be extra-sensitive to the welfare of our people,” he stated.

Just over a week after details of the case surfaced in the media, and after Senator Johnson Smith was pressured in the Upper House for answers, the ministry disclosed that in 2017 it received and granted a waiver of jurisdiction from the US under what is known as the 1997 “Ship Rider Agreement”, concerning five fishermen. This allowed the coast guard to board the vessel and to detain the men.

It contends, however, that: “there is no record of any complaint of mistreatment lodged with the Jamaican Government by the five men since the time of their arrest by the US authorities in 2017, including during their deportation from the United States in 2018, when they engaged directly with the staff of the Consulate-General in Miami, nor on their return to Jamaica. It is also regretted that the family of the men did not report them to the ministry as missing, as has been done in many prior consular cases”.

Johnson Smith, who has been sharply critised for the tone of the statement, hit back in the Senate on Friday, after being tackled by Opposition Senator KD Knight, a former foreign affairs minister himself.

She stressed that the points articulated in the statement were not intended to ascribe blame, but to underscore that the ministry was unaware of the situation until it came to public attention.

“What I sought to do was to point out the times at which the ministry in its operations would normally become aware of a need for consular assistance — at none of those points, did the ministry become aware,” she stated.

The foreign affairs minister further stressed that when she initially responded to questions about the fishermen on June 14, she was truthful based on the information that was available at the time.

The US Coast Guard was operating under the Maritime Drug Law Enforcement Act, which allows them to stop, search and seize contraband or illicit drugs on the high seas, but the ACLU believes it went overboard. The Coast Guard has denied some of the claims.

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