The rule of law: perpetual SOEs
This is the third and final instalment of a series of columns on states of emergency and the Constitution.
“The rule of law is one of the pillars of a modern civilised society. We must remind ourselves of the importance of the rule of law.” – Lord Neuberger, ‘Learning the Rule of Law’, in Prospect, New Thinking for 2019
THE RULE of law, to be binding, must have validity from a constitutional source, as per Justice Michael Kirby, judge of the High Court of Australia in Judicial Activism.
The Charter of Rights expressly provides for the duration of a state of emergency to be initially for only 14 days thereafter or such longer period not exceeding three months, as both Houses of Parliament may determine by resolution supported by two-thirds majority of all the members of each House and may be extended thereafter for a further period of three months. See Section 20(3).
The Opposition did not approve a further extension, and consequently, the state of emergency (SOE), which had been declared in St James on January 18, 2018, came to an end. There has been extensive criticism in the media of the Opposition’s actions in not approving a further extension. The media have embarked on a campaign attacking the Opposition and criticising its actions.
It is clearly apparent, also, that from polls taken, public opinion favours the view that the Opposition stands alone and agrees with the Government that the SOE should have been extended.
The Opposition certainly was within its constitutional prerogative not to approve a further extension. Although most letters to the media support the Government’s position that the SOE should have been extended, there are also opinions to the contrary.
It is not unusual for views to be expressed by what appears to be
a majority of citizens but when analysis is done, it reveals that most of the times, public opinion is not based on established fact or rational grounds, but sometimes emotion or partisan support.
BASIC CONSTITUTIONAL PRINCIPLES
In this case, it appears that public opinion has not considered the basic constitutional principles or considered or read the submissions of the Office of the Public Defender, which were laid in Parliament.
Quite apart from the second part of the report dealing with conditions under which persons were detained in three parishes, St James, St Catherine, and Clarendon, which were extremely deplorable – the more important question is the basis on which persons were detained.
The submission shows that in St James, 3,687 persons were detained under the SOE declared on January 18, 2018. Only 139 of those were charged with criminal offences, with the result that 3,548 young men were scooped up out of their communities, separated from freedom, from families, from normal activities, and put into police detention. During the SOE, those processed were released, and all of those reviewed by the tribunal were ordered to be released.
It is more amazing to review the charges concerning the 139 detainees.
Murder, 16; illegal possession of firearm, 16; and other offences represented the highest number. After that was breach of the Petroleum Act, 13; and indecent language, 10.
When one looks at the list of offences, it is totally absurd that such persons could have been detained under an SOE to consider what danger could have been attributed to their conduct as being detrimental to the State. One should really examine the data when considering that an SOE should be further extended and the basis therefor.
It is clear from the list that the charges brought, apart from murder and illegal possession of firearms, have no bearing whatsoever on an SOE as defined in the charter. This only reflects that public opinion can be ventilated in media without reason or proper analysis.
THE CONSTITUTION
The Constitution is responsible for establishing the balance between the majority and the individual regarding their respective rights and entitlement.
In Jamaica, this is exactly what our Constitution does, as stated in the Charter of Rights, which clearly guarantees to the individuals the rights and freedoms set out therein. The majority is not entitled to trample on the rights of the minority or individuals who are protected in the Charter.
The whole purpose of having a limitation to the duration of an SOE is to prevent the Government from using and prolonging it without the necessary justification. One has to appreciate that individuals are entitled to the rights promulgated in the Constitution and the charter, and there must be a clear case for their justifiable infringement.
The rule of law clearly requires that in the exercise of powers that abrogate the fundamental rights of individuals, the State must satisfy, legal criteria, and nothing else, despite the media’s publicity of their views and of public opinion polls.
The Constitution contains express provisions concerning the extension of SOEs. There may be criticism of those who advocate conformity with the Constitution, nevertheless such criticism cannot override the express provisions of the charter.
It is interesting to observe the Report of Lord Denning into the Profumo scandal in the United Kingdom 1963. In the introduction, Lord Denning concluded thus:
“When the facts are clear beyond controversy, I will state them as objectively as I can, irrespective of the consequences to individuals, and I will draw any inference that is manifest from those facts. But when the facts are in issue, I must always remember the cardinal principle of justice, that no man is to be condemned on suspicion. There must be evidence which proves the guilt before he is pronounced to be so. I will, therefore, take the facts in his favour rather than to do an injustice which is without remedy. For from my findings, there is no appeal.
“To those who in consequence will reproach me for whitewashing, I would make this answer. Whilst the public interest demands that the facts should be ascertained as completely as possible, there is yet a higher public interest to be considered, namely the interest of justice to the individual which overrides all others. At any rate, speaking as a judge, I put justice first.”
In the Trinidadian case of Collymore v Attorney General 1967, Sir Hugh Wooding, in delivering the judgment, stated “that the court is the guardian of the Constitution”.
It is clear that the rule of law prevails in Jamaica, as administered by the Full Court in the recent case of Julian Robinson v The Attorney General, which held that the National Identification and Registration Act enacted by Parliament was unconstitutional, null, and void.
On Thursday, January 18, 2018, an SOE declared for the parish of St James ended when the Opposition did not approve a further extension. Since then, there have been some murders in St James, as well as in Westmoreland and Hanover, where a three-parish state of public emergency was declared on April 30, 2019.
This raises the question, is there to be an SOE declared whenever previous states of public emergency have expired and is followed by several murders? Is it that SOEs will be perpetually declared in order to deal with crime? Would this be constitutional?
It must be appreciated that Jamaica is not in isolation and has internationally earned a reputation as one of the countries in which there are excessive homicides, in the region of 40 per 100,000. An SOE will never eradicate murders or crime.
Regrettably, we have developed a very lawless and violent society which is one of the reasons for murders even being committed by juveniles in schools.
Violent crime is a soluble problem, while we may never get the homicide rate for the world down to the level of Kuwait (north 0.4 per 100,000 for the year); Ireland (0.3) or Singapore (0.2), let alone all the way to 0.
We see pictures on the front page of the newspaper about how many guns have been discovered at the port, but there have been few, if any, arrests concerning the persons involved in the importation or for whose destinations they were intended. Regrettably, this has happened on many occasions.
Certainly, this cannot constitute efficient policing. It is obvious that there are firearms available that are not licensed and are involved in several homicides. Therefore, the way forward in dealing with crime is not by states of emergency, but to have efficient law enforcement.
The question now arises as to whether the Jamaica Constabulary Force can satisfy the criteria of efficient policing. Their record clearly demonstrates that much is to be desired as they are not sufficiently intelligent and, in many cases, corrupt.
A review of the list of offences to which charges were laid during the 2018 state of emergency makes a mockery of the security crackdown.
It is amazing to think that any police force with any intelligence whatsoever could, under an SOE, detain people for indecent language. Anyone reading the list will conclude that the force has failed lamentably to demonstrate efficient policing.
A perpetual SOE is not the solution. It is not nice to be listed either as one of the most dangerous places in the world or as one in which individual liberty is destroyed.