Public defender rejects call to give security forces more detention powers
PUBLIC Defender Arlene Harrison Henry says that granting the security forces the power to detain people in excess of five days under emergency powers such as the zones of special operations (ZOSO) is “unsafe”.
Harrison told yesterday’s meeting of the joint select committee (JSC) reviewing the provisions of the Law Reform (Zones of Special Operations) (Special Security and Community Development Measures) Act, 2017 at Gordon House that to grant the security forces such power would only open the door to further “gross abuses”, especially from the police.
“It is not sure how the security forces, at least the police, can justify this power to detain for up to five days when in the zones, so far, almost 100 persons detained were released on the same day of detention [without being charged],” she said in a submission to the JSC, which is being chaired by deputy prime minister and Minister of National Security Dr Horace Chang.
Harrison Henry called for a legal standard to be set, otherwise, she said, there would be a breakdown of the rule of law in such a situation.
“In any democracy, there is a legal standard that has to be met before anyone’s liberty can be interfered with,” she said.
The public defender stated that Section 16 of the ZOSO Act makes it mandatory for a person arrested or detained to be “forthwith” taken before a justice of the peace (JP) who “shall determine whether or not there are reasonable grounds for the arrest or detention”.
She added that there has been no reference or note of any person, arrested or detained, having been taken before a JP, as required by the Act. She also noted that data provided by the police showed that, of 582 people who were detained and released in Mount Salem, St James, on the same day, only one was charged.
Government Senator Charles Sinclair questioned whether the public defender had written to the commissioner of police or the chief of defence staff in reference to matters she had concerns about at the meeting.
In response, Harrison Henry said she would focus instead on reporting the “facts”, as she had received information which has been added to her report to Parliament.
“The aim of that report was to try and see how we can improve a situation; that is my sole purpose here,” she added, noting that the inaction did not mean that the 582 detainees, who were processed and released, did not have their rights violated.
“We have never said that there is any tension between the police and citizens. We are not talking about that, and in making a report to Parliament, Member, I am entitled to draw conclusions from the office in which I sit. If you don’t agree with it, that is entirely a matter for you,” she responded, noting that the 582 people detained did not come to the Office of the Public Defender to complain that they had been taken in.
Another Government member of the committee, Senator Sherene Golding Campbell, noted that the data provided by the public defender’s office was inconsistent, in terms of some of the issues raised, and needed further clarification.
She noted that, in its deliberations, the committee was reviewing the operational aspects of a legislation that is “fundamentally intruding on the constitutional rights of Jamaican citizens. In doing that, it cannot be that the deliberations are going to be informed by conclusions that are not based on data”, Senator Golding Campbell said.
“That is my concern, because, quite frankly, in looking at the data presented and the conclusions drawn in this report, and looking at the previous report submitted to this committee, there is a clear break in the consistency of the data that is apparently coming from the same source,” Senator Golding Campbell said.
“We now have to go back and reconcile that, and then determine whether or not there is a basis to ask the public defender to relook at the issue, or to ask the JCF to explain to us what the anomaly is about,” she added.
In her submission to the committee, the public defender also criticised a number of other proposals made by the Jamaica Constabulary Force (JCF) for amending the legislation, normally referred to as the ZOSO Act, to give them additional powers to operate in declared zones.
These include criminalising breaches of a curfew order; criminalising the prevention or the attempt to prevent security forces from carrying out searches of people and properties without warrant in a zone; empowering the security forces to seize tools of trade, if it is likely to be used to commit any offence; and removing the need for the joint command to advise the prime minister to suspend operations in a zone of special operations.
Henry also noted that the security forces’ power to detain, albeit under the state of emergency, and matters related to the operation of security forces in that enhanced security measure are currently under active judicial consideration.
“Any amendment to the ZOSO Act, another enhanced security measure, should properly await the Court of Appeal’s decision; it may very well have implications for ZOSO,” she cautioned.
FAYVAL Williams, the minister of education and Member of Parliament for St Andrew Eastern, on Tuesday voted for an extension of the zone of special operations (ZOSO) in the August Town area of the constituency for an additional 60 days, because of the need for continuing peace after a break from frequent violence.
In addition to August Town, Greenwich Town in St Andrew, Denham Town in Kingston, as well as Mount Salem in St James received extensions from Parliament on Tuesday to the ZOSOS in their communities.
Underscoring the necessity in extending the security measure in August Town until May 10, 2021, Williams told Parliament that the people of August Town, particularly the elderly, were now able to sleep peacefully at nights as a result of the ZOSO and the community being flooded by the security forces.
Prior to the ZOSO in August Town, which was initially declared on July 8, 2020, Williams said, “the elderly went to bed at nights, not sure if they would be able to get under their beds fast enough when the gunshots start. Many elderly persons have hurt themselves ducking for safety [but] people can walk freely on the streets of August Town again, to the bus stop, to the corner shop or to church”.
“Coming home at nights, people don’t have to be fearful. Taxis don’t have to drop persons at the entrance of the community, spin around then make a hasty retreat. Our children have gotten a reprive from the gut-wrenching gunshots. Imagine the trauma of the students in grade six at the August Town Primary School, seeing gunmen chasing across the school grounds, firing high-powered rifles at each other. That was the situation prior to the ZOSO, “Williams said. “August Town is breathing again, thanks to the men and women of the joint forces who are awake while residents sleep at nights.”
Williams also pointed out that the social intervention element that forms part of the core of ZOSOS has already began taking shape in August Town.
“Last week I attended a Jamaica Social Investment Fund function at which 25 micro entrepreneurs from August Town received grants and equipment to expand their existing businesses, ranging from food and beauty services, to window and block making,” Williams said.
In the meantime, Opposition Leader Mark Golding encouraged called for better assessment of the impact of ZOSOS in the four communities where the 60 days extension was secured, saying it seemed to be an almost routine renewal.
Golding added that Jamaica’s rate of violence has placed it at the top of the list in the western hemisphere, pointing out that while the focus is being given to these four communities, violence breaks out frequently in other areas that don’t get the same level of attention or resources.
“The Denham Town and Mount Salem orders have been in effect since 2017 and every 60 days they come here to be renewed. The Greenwich Town and August Town are more receent but this is not the first time they are being renewed. We recognise that ZOSO represents an attempt to grapple with the phenomenon of high levels of violent crimes, gang-related and otherwise. The use of the zone of special operations legislation has been so limited over the three plus years,” said Golding
“These are four small communities in the scheme of areas in Jamaica in which high levels of violent crimes exist. For example, in the case of Denham Town, there are surrounding communities which are from time to time impacted by high levels of violent crime and they don’t have the same level of security that Denham Town has enjoyed. I look forward to this ZOSO legislation being upgraded, because even the ZOSO areas are not immune from violent acts,“Golding told Parliament.