...The learned judge erred, made contradictory findings, Gov’t argues in SOE appeal

THE Government in the Notice of Appeal filed in relation to the September ruling of Supreme Court Justice Bertram Morrison that the detention of five men under states of emergency (SOE) was “unlawful”,is arguing, among other things, that “the learned judge erred” in several respects and also “made contradictory findings”.

The five, Nicholas Heat, Courtney Hall, Gavin Nobel, Courtney Thompson, and Everton Douglas, were all released from custody with the ending of the SOES in August ahead of the September 3 General Election, after being held under the measure for close to two years in instances. The men had challenged the State on the legality of their detention. The matter was heard by Justice Morrison over several days in July.

Douglas, according to the court, had been held from January this year for “177 days and counting without being charged”; Heat from July 2019 for “361 days and counting without being charged”; Hall from June 2019 “for 395 days without being charged”; Thompson from July 2019 “for 365 days without being charged and Nobles since May of 2019 “for 431 days and counting without his being charged”.

In the Notice of Appeal filed on October 29 this year, a copy of which was obtained by the Jamaica Observer, the appellants — namely the Ministry of National Security, the commissioner of police and the attorney general of Jamaica — are appealing the findings of the judge on seven grounds.

The grounds of the Appeal are: a) The learned judge erred in failing to recognise that sitting as a single judge on a Notice of Application for a Writ of Habeas Corpus...he should not have conducted an enquiry pursuant to section 20 (5) of the constitution into the constitutionality of the Proclamations made by the governor general under Section 20 (2) of the constitution without the court being constituted as a full court and the State, thereby being given the fullest opportunity to justify the constitutionality of the Proclamation.

b) The learned judge fell into error in failing to recognise that sitting as a single judge on a Notice of Application for a Writ of Habeas Corpus brought pursuant to part 57 of the Civil Procedure Rules (CPR), he should not have determined the constitutionality of the Emergency Powers Act and the Emergency Powers

Regulations without the court being constituted as a full court, the provisions of the Constitutional Redress Rules and Part 57 of the CPR being complied with by the respondents and the State thereby being given the fullest opportunity to justify the alleged constitutional violations.

c) The learned judge had little or no regard to the oral and affidavit evidence presented by the appellants which not only justified the detention of each of the respondents under the provisions of the relevant Emergency Powers Regulations, but provided adequate proof that the circumstances outlined in section 20 of the constitution which authorise the governor general to declare a state of public emergency existed.

d) The learned judge erred in finding that on the facts of this case there was no valid state of public emergency that existed and that for a valid one to exist, the emergency conditions must exist in the whole nation.

e) The learned judge erred in finding that the Emergency Powers Act is in conflict with the constitution since it makes reference to the now repealed Section 26 of the constitution and not to Section 20 of the Charter of Fundamental Rights and Freedoms. In so finding, the learned judge failed to recognise that the effect of Section 25 (1) of the Interpretation Act is to construe Section 2 of the Emergency Powers Act as referring to Section 20 of the Charter of Fundamental Rights and Freedoms.

f) The learned judge erred in finding that sections 30 and 33 of the Emergency Powers Regulations are unconstitutional and that the detention orders made by the minister of national security were unlawful and that the respondents’ detentions were impermissible.

g) The learned judge made contradictory findings, in that on the one hand he found that the Emergency Powers Act is inconsistent with the constitution, while on the other hand he found that the detention of the Respondents was in violation of the very same Act.

In the Orders sought, the Administration is seeking to have the court allow the appeal, set aside the findings of the judge relating to among other things, whether a single judge had any jurisdiction in the men’s matter which is thought to have been the purview of a constitutional court and award the costs of the appeal to the appellants.