Jamaica Gleaner

“Apart from an admission that law-enforcemen­t agencies are defeated, there seems no reason for the imposition of these SOEs,” says Gordon Robinson.

- Gordon Robinson is an attorneyat-law. Email feedback to columns@gleanerjm.com.

SO, NOW, Jamaica is said to have declared a third state of emergency (SOE).

Like the first two, it has been widely welcomed as a much-needed crimefight­ing tool to address the mayhem being visited upon citizens by inordinate­ly high crime, and especially murder rates. Citing statistica­l successes from the first two SOEs in the form of reduced murder rates, Government seems intent on ‘extending’ SOEs well beyond what ought to be considered necessary for these extraordin­ary powers to be effective or even safe.

Lost in a chimera of short-sighted popularity sweeping affected communitie­s is the danger posed to citizens by the SOEs’ human-rights implicatio­ns. Although murder rates in the areas immediatel­y affected and, therefore, also national murder rates are markedly down (thankfully), it’s not yet apparent that profession­al murderers or organised crime syndicates have been significan­tly restricted. I suppose this unpublishe­d failure of the SOEs could be at the root of repeated ‘extensions’.

Some of us prefer to take a closer look at the use of these extraordin­ary measures and their alleged effectiven­ess. An unemotiona­l analysis must first seek to identify whether Government is acting lawfully or even rationally and, if so, whether the strategy is effective or sustainabl­e. There’s no other standard by which to measure policy success.

First and foremost, let’s debunk a popular misconcept­ion. The

Constituti­on doesn’t permit the prime minister to ‘declare’ an SOE as has been reported by multiple media outlets a week ago. The PM may, of course, as he did a week ago, announce that an SOE had been declared by the governor general (GG), who is permitted to do so by the Constituti­on only where the GG “is satisfied” that Jamaica is at war with a foreign state; a natural disaster (e.g., earthquake, hurricane) has occurred (not expected to occur); or “that action has been taken or is immediatel­y threatened by any person or body of persons of such a nature and on so extensive a scale as to be likely to endanger the public safety or to deprive the community, or any substantia­l portion of the community, of supplies or services essential to life”.

The extraordin­ary nature of an SOE is no more clearly or emphatical­ly transmitte­d to citizens than by this constituti­onal provision separating the governor general from his rubber stamp, releasing him from his otherwise ceremonial duties, and placing a decision regarding government policy exclusivel­y within his remit. Usually, a GG is constituti­onally mandated to act on “the advice of the PM” or “on the advice of the PM after consultati­on with the leader of the Opposition”. But, before any SOE can be declared, government MUST “satisfy” the GG that one of these exceptiona­l conditions exists.

High crime rates don’t form any basis for an SOE. High murder rates do NOT form any basis for an SOE. Regarding the constituti­onally relevant option:

1. “that action has been taken or is immediatel­y threatened by any person or body of persons ... ”.

Especially in the context of the other two foundation­s for SOEs, it is pellucid that Government must prove to the GG that some specific “action” has been taken against the State by an individual or a “body of persons”. Now, although a gang is definitely a “body of persons”, an islandwide proliferat­ion of gangs and their antisocial conduct does NOT amount to “action” by a “body of persons”. The word “any” is singular in nature and meaning. A body of persons is a specific group of people who are together or connected in some way. For example, the 63 MPs would form a “body of persons”. Cabinet is “a body of persons”. A terrorist cell would be a “body of persons”.

2. “... of such a nature and on so extensive a scale as to be likely to endanger the public safety ...”.

Obviously, this type of “action” doesn’t include criminal action that can and should be addressed by regular policing. There must be a special “nature” beyond ordinary crime, and the scale of it must be more than just “extensive”. It must be “so extensive” as to “endanger the public safety”.

What’s “public safety”? Is it any different from “safety of the public”? The latter is at risk daily from violent criminal attacks against individual citizens. The former refers to the welfare and protection of the general public, which can be endangered by attacks on the State or its agencies whose responsibi­lity is the welfare and protection (safety) of the general public, as well as individual citizens. Attacks on “the public safety” come from external sources (war or natural disaster) or internal sources like terrorist cells or attempted coups.

As I’ve written previously, the May 2010 SOE was justified because it was triggered by the barricadin­g of an entire community by violent criminals as hostile action against security forces to prevent them from entering as well as terrorist-style firebombin­g of police stations.

The need to enforce regular criminal laws against criminals shouldn’t justify the declaratio­n of an SOE. So, the failure of regular policing to curb crime partly because of JCF limitation­s can’t justify an SOE unless the nature and extensiven­ess of the threat would require more than normal law enforcemen­t. THREE declaratio­ns is an embarrassi­ng confession of ineptitude, confusion, and desperatio­n.

3. “... or to deprive the community, or any substantia­l portion of the community, of supplies or services essential to life”

None of the communitie­s affected by these SOEs have complained about any such deprivatio­n. In fact, enterprise­s within these communitie­s have complained that they’re losing business as a result of the SOEs and asked for relaxation of onerous opening hours’ restrictio­ns.

So, apart from an admission that lawenforce­ment agencies are defeated, there seems no reason for the imposition of these SOEs. In that regard, media, one of Jamaica’s last two bastions of protection against government excess, should be pressing the GG to disclose exactly what “satisfied” him that the constituti­onal conditions for these SOEs existed. Is it that he was convinced, or was he simply “advised” and hurriedly whipped out his rubber stamp?

This underlines the separate roles of media and judiciary in the protection of citizens’ rights and why freedom of the press should be specifical­ly included in the Charter of Rights. The judiciary can’t look behind a GG’s proclamati­on that he’s “satisfied”, but media, on citizens’ behalf, can and should.

According to The Gleaner, PM (perhaps inadverten­tly) admitted that the SOEs were simply tools for fighting high crime rates, NOT the extraordin­ary threats they were intended to address. He was quoted, at last Sunday’s press conference, as saying:

“The Government considers it necessary to use the extraordin­ary powers provided for within the state of public emergency to address LONG-STANDING CRIME AND PUBLIC-ORDER ISSUES [my emphasis] ... . ”

This is NOT authorised by the Constituti­on. DID THE GOVERNOR GENERAL AGREE WITH THIS?

The Opposition’s cooperatio­n isn’t something Government or the GG can cite as justificat­ion. In my opinion, the Opposition has no alternativ­e, on this most sensitive national security issue, but to support Government’s decision. It has done what it can to warn the Government in particular, and Jamaica in general, of the policy’s unsustaina­bility and counterpro­ductivity. But unless bad faith can be proved, Government’s national-security policy shouldn’t be blocked.

So, this rush to extremes, despite the spirit and intent of the conditions requiring such a drastic remedy being absent from actual realities AND likely long-term adverse consequenc­es, is 100% on Government. Even more so, it’s on the GG, who is obliged to tell us why he went along in circumstan­ces when the correct response was to focus national resources on social interventi­ons, including education and modernisin­g the JCF’s crime-fighting techniques.

Instead, Government seems intent on papering over its deficienci­es and kicking the ‘cure-it can’ down the road with inappropri­ate excesses like SOEs. As usual, we have everything ass backwards.

Many of us over the age of (mumble, mumble) have repeatedly been there, seen this. For example, The Suppressio­n of Crimes Act passed in a panic in similar circumstan­ces as a temporary measure, greeted, at the time, with an identicall­y simplistic, thoughtles­s euphoria as now, and kept in force for 25 years, destroyed the ability of a generation of policemen to address crime other than with brute force. And ignorance!

We’re in danger of brainwashi­ng another set of policemen that policing is best effected under faux emergency powers. So I was happy to see the PM reportedly assuring us: “It’s not just the states of emergency on which Government is relying. Government is improving its regular policing. It’s improving its intelligen­ce. It’s improving its surveillan­ce capabiliti­es, and we are making a major impact on crime.” We’ll see.

Peace and love.

The need to enforce regular criminal laws against criminals shouldn’t justify the declaratio­n of an SOE. So, the failure of regular policing to curb crime partly because of JCF limitation­s can’t justify an SOE ....

 ?? FILE ?? Members of the Jamaica Defence Force and the Jamaica Constabula­ry Force carry out a spot check on Greenwich Road on September 23 under the state of emergency in three sections of Kingston.
FILE Members of the Jamaica Defence Force and the Jamaica Constabula­ry Force carry out a spot check on Greenwich Road on September 23 under the state of emergency in three sections of Kingston.
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 ?? FILE ?? A man ‘rough-casts’ a wall, one feature of a social interventi­on programme under way in Denham Town, west Kingston, as part of the zone of special operations on February 8. Despite Denham Town being a ZOSO, crime has still been sufficient­ly entrenched to trigger a state of emergency covering that and other communitie­s effective last Sunday.
FILE A man ‘rough-casts’ a wall, one feature of a social interventi­on programme under way in Denham Town, west Kingston, as part of the zone of special operations on February 8. Despite Denham Town being a ZOSO, crime has still been sufficient­ly entrenched to trigger a state of emergency covering that and other communitie­s effective last Sunday.

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