Editorial | Need robust debate of ZOSO review
This week, a parliamentary committee, which, so far, has received little public notice, will continue its review of the law that allows the Government to declare zones of special operations (ZOSOs). That should change. People, especially campaigners for constitutional rights, should pay attention.
This is not because we have any specific concerns about the work of the committee, or of the intention of the Government, which is yet to articulate its intention for the reform. Rather, we believe that better decisions are made when there is a transparent and robust debate and many ideas contend. There is much evidence of the flawed legislation that were not subject to this rigour, such as the first go at a law for a national identification system.
The ZOSO law does not, as it now stands, do any harm, even if it was not necessary. The Government, however, probably had two good reasons for passing it. In 2017, when Parliament approved the bill, the administration had it as evidence, as well as a psychological boost, of acting decisively against a spiralling wave of crime. The other, and perhaps more useful factor, is that declaring a ZOSO in a way obligated the Government, morally at least, to divert resources to the infrastructural development of the targeted communities. How well that happened is questionable.
The bottom line, though, is that the Law Reform (Zones of Special Operations) (Special Security and Community Development Measures) Act, to give the legislation its proper name, allows the authorities nothing more than they could have accomplished by the use of regular policing powers, or through policy and administrative action.
It does not, for instance, require a ZOSO for the Government to target a community, or area, for special attention, such as repairing roads and drains, improving schools and/or engaging in other social interventions. Neither is a ZOSO a precondition for the police to establish operational posts in communities and, with the military, maintain a high-profile presence that deter criminals.
Further, anything the police can do under the ZOSO law, including imposing cordons and searches, are easily achievable under the Jamaica Constabulary Force Act. The powers that are not available to the security forces under the ZOSO law are those that come with declarations of the states of public emergency, a constitutional action that ultimately engages Parliament and allows for the infringement of fundamental rights and freedoms.
The constabulary, however, has made a number of proposals for amendments to the law, including one that might raise if not issues of constitutionality, questions about how long people should remain in lock-ups when they are arrested, and who should exercise the power to make these determinations, including at what point a judge should come into the picture.
ENTITLED TO BAIL
Under Jamaica’s Bail Act, all arrested persons, except in specific circumstances outlined in the law, are entitled to bail. That bail consideration should take place by a parish judge or justice of the peace within 24 hours of the arrest. In circumstances where the person has not yet been charged, the judge or the justice of the peace can order his release or make “such other order as (the judge of justice of the peace) thinks fit, having regard to the circumstances”.
The ZOSO law requires a person arrested or detained to be taken before a justice of the peace “forthwith” to determine whether the person should be released or held for 24 hours to allow for further investigations. At the end of those 24 hours, the detained person is to be taken before a parish court judge to consider bail.
The police have concerns with the timeline. They complain that the law does not give the justice of the peace sufficient decision-making leeway to determine what to do with the detained person, thus making the process restrictive for the security forces. “It is submitted that this is contrary to the intention of the act, as the act is aimed at providing additional tools and powers to enable the security forces to deal with areas that are particularly rampant with high levels of crime and violence,” the constabulary says in a submission to the parliamentary committee.
The police, therefore, have proposed that a detained person in a ZOSO should first, after 24 hours, be brought before a senior police officer or military officer for an initial determination of whether he should be released. If the officer determines that the detention should continue, the person, after another 24 hours, would be brought before a justice of the peace, who would determine whether there are “reasonable grounds” for continued remand without charge, for up to another 72 hours. It is after that pre-charge detention of five days that the person would have a clear right to be brought before a parish judge.
This newspaper, at this time, has no clear position on this issue. We, however, believe that this is a question deserving of serious interrogation, as does the police’s recommendation that the soldiers operating in a ZOSO should have the power of arrest, without the presence of a constable.