What is permitted in these zones of special operations?
FOR THE first time, members of the Jamaica Defence Force (JDF) would have police powers, making soldiers into police constables.
While the use of the JDF to support police operations has become necessary in Jamaica’s stressed security environment, the clear legal separation between soldiers and police has been absolutely important in maintaining the professionalism of the JDF as a military organisation. Allegations of abusive conduct by JDF soldiers have, happily, been rare in comparison with the Jamaica Constabulary Force (JCF). Giving police powers to JDF members in these zones effectively abolishes that important line of differentiation, is not driven by any compelling need, and is a bad idea.
Any policeman or soldier can search any person or place or vehicle without needing a warrant. Therefore, every citizen in the zone, no matter how decent and upstanding, is exposed to being searched personally and having his home or her vehicle searched by any policeman or soldier without the protection that the requirement of obtaining a warrant provides. This ought to be a point of concern for each and every person residing in Jamaica. It is an all too common sentiment when repressive measures are proposed for some segments of society to support it on the basis that only those who live in certain economically depressed areas are going to be affected by those measures. It must be remembered, however, that we already saw, during the events of May 2010, that a residential address located in Upper St Andrew does not guarantee immunity from the invasive actions of the State.
Any policeman, from the lowest rank upwards, is given the right to seize any document, vehicle or article in the zone. It can be your passport, your voter
ID, your phone, your laptop, your car, your land title, or, indeed, anything at all that is not a tool of trade. There is no need for a warrant or other safeguard. And once your documents or properties are seized, there is no procedure in the bill for getting them back, if the security forces in the zone choose not to return them to you.
UNCHARTED WATERS
The law allows arrest or detention on suspicion that an offence has been or is about to be committed. The bill extends this basic position into uncharted waters by allowing a person to be arrested or detained if the officer in charge of the zone considers that there is “reasonable ground for the arrest or detention”. This does not require any connection between the person and any criminal act. The grounds may be other unspecified considerations. This formulation clearly violates the rule of law.
Curfews can be imposed by a
decision of the “Joint Command”, which means a major of the JDF and a superintendent of police. The need for approval by the minister of national security, an elected and accountable official, is abolished
in these zones. Not only does the bill remove this procedural safeguard in relation to imposing curfews, it also extends the period for which a curfew can be imposed, from 48 hours to three days.
Having created all these extraordinary powers, the bill then seeks to put limits around them by various recording and other bureaucratic requirements that will be burdensome for the security forces to comply with and which, I strongly suspect, will be largely ignored.
The provisions in the bill for the establishment of social investment committees in the zones are mere window dressing intended to give the appearance of a balanced approach. The bill does not request these social investment committees to be provided with any resources to tackle the social deprivation within the zones, and provides no powers to these committees to request that required resources are provided. These committees are being set up to become mere talk shops, given a basket to carry water, and unable to affect any real changes in these communities.
The overall scheme cooked up by this bill is, in my view, egregiously unconstitutional.
Jamaica’s Constitution does not contemplate the suspension of basic civil liberties in areas which may be small or very large, for lengthy periods or, indeed, indefinitely if the governing party so wishes, all at the behest of a covert, unaccountable body like the prime minister in Council.