Editorial | Shocking ignorance by ministers

It is shocking if, as they implied, the foreign affairs and national security ministers were in the dark about the details around the 2017 detention and jailing of five Jamaican fishermen in the United States (US), who are now suing the US Coast Guard that was allegedly cruel and inhumane.

For such ignorance would suggest that both Kamina Johnson Smith and Horace Chang are less than attentive, to the point of negligence, to critical elements of their portfolios, or that the Americans pay little heed to the letter, or spirit, of their obligations under the long-standing Shiprider Agreement between Kingston and Washington, to the point of treating the perceived minor partner with disrespect.

In either case, the situation would be bad. But in the event of inattentiveness, the failure is more egregious on the part of Mrs Johnson Smith, who has been the foreign affairs minister since the Holness administration assumed office in 2016.

The fishermen – Patrick Ferguson, Robert Weir, Luther Patterson, David Williams and George Thompson – left the island in September 2017 to fish in the Morant Cays, off Jamaica’s southeast coast. But, according to their account, they developed engine trouble and, in less-than-ideal weather, lost their bearing and ended up in Haitian waters, without knowing where they were.

Before they could determine what to do, they were intercepted by a US Coast Guard vessel, held on suspicion of trafficking ganja, and bounced about US ships for a month, shackled to decks, exposed to the elements – sun, rain and Atlantic storms – and always frightened for their lives. They weren’t allowed to make contact with family or, apparently, lawyers.

Eventually, the group was taken to Miami, where the case of conspiring to smuggle ganja fell apart when prosecutors admitted that they couldn’t prove a case. The Coast Guard had, in fact, picked up ganja from the sea, they claimed, but the reclamation was too far away from the Jamaicans’ boat, which was destroyed at sea by the Americans, to sustain a case.

The men pleaded guilty to making false statements to federal law-enforcement officials, during the boarding of their vessel, about their destination. They say they only made the plea on being advised by lawyers that it was the quickest way to return to Jamaica. Each served 10 months before being deported to Jamaica last August.

There are several elements to this case that ought to have drawn the attention of Jamaican authorities, not least the fact that missing fishermen should have triggered inquiries of Jamaica’s neighbours, including their help in search and rescue. And in relation to the United States, there is the Shiprider Agreement.

The controversial 1997 agreement, codified in the Maritime Drug Trafficking (Suppression) Act, allows each other’s ships or planes to patrol their seas and airspace.

And in the case of the sea, a law-enforcement officer (the shiprider) from the country whose waters are being entered is to be aboard the interdicting vessel to enforce his country’s laws.

With regard to the hot pursuit of a suspect vessel into a partner’s territorial waters, the pursuing ship is required, by law, to get the permission of the “central authority”, in Jamaica’s case, the national security minister or his designee, to maintain the chase.

LEGISLATION CLEAR

While the request may, initially, be oral, it has, subsequently, to be “confirmed in writing to the competent authority”, including all the circumstances relating to the suspicion. In 2017, at the time of the detention of the five fishermen, Robert Montague was Jamaica’s minister of national security.

A 2015 amendment to the law allows the minister, with regard to a Jamaican vessel detained by a treaty partner “seaward of any state’s territorial sea to waive Jamaica’s right to exercise jurisdiction over the vessel and authorise the relevant treaty state to enforce its laws against that vessel, its cargo and persons found on board that vessel, other than Jamaican nationals”.

However, the legislation makes it clear that “the laws of Jamaica extend to any offence committed outside of Jamaican waters on a vessel or aircraft registered in Jamaica”, and that the amendment wasn’t a “waiver by Jamaica of its right to exercise jurisdiction over any Jamaican national, or … authorising the relevant treaty state to enforce its laws against any such national”.

In the event, the US would have been expected to inform Jamaica that it was holding its nationals for trial, and the fishermen would have been expected to have been debriefed, as is the protocol on being deported home. People fell down on their responsibilities, it seems.