Mickel Jackson | Rule of law: what is it and why does it matter?

Human rights defenders and organisations such as Jamaicans for Justice (JFJ) often face backlash from politicians and citizens alike. Criticisms from well-intended citizens tend to be fuelled by fear, frustration and a misunderstanding of what is rule of law and the role of human rights organisations. While one suspects that criticisms from politicians may be more grounded in political expediency, it is still important that efforts are made to explain the importance of rule of law to all.

The rule of law is there to ensure that the state operates free from arbitrary rule, that branches of government and their powers and authority are well-defined and respected. For the rule of law to be effective, there must be equality under the law, transparency of law, an independent judiciary and effective legal remedies. Rule of law without human rights would be mere paper promise and lip service. Without respect for rule of law, or without rule by law, Jamaica would have a constitution without constitutionalism. Simply, democracy in name but autocracy in practice.

JFJ understands the urgency felt by many citizens regarding safety and security. Nevertheless, we must collectively resist the temptation to advocate for measures that undermine our well-established judicial systems and the established rules we have governing our country. When rules are discarded for political conveniences, or even fear, citizens must ask themselves, who will most likely be negatively affected? You can be guaranteed, it will not be the upper middle class or the one per cent.

The recent public discourse around adopting the ‘El Salvador model’ raises alarm bells about the potential erosion of our constitutional protections. This model that has been romanticised by citizens, teased as a possibility by officials and outright calls from some government members. It is critical for citizens to resist what seems like an amorous option. One must be careful not to replace gang violence with state violence. The dangers of ‘Burkelism’ needs to be further examined, which I will delve into in a future commentary.

BETTER JOB

Further, with a government seemingly aroused by the routine use of emergency powers for crime-fighting, it is important that civil society does a better job of explaining the dangers and possible erosion of the rule of law. For example, an earlier review tribunal was established that undermined the separation of powers between the judiciary, legislature and executive. Additionally, the minister of national security, who sits in both executive and legislative branches, was then provided with ‘powers’ of issuing detention orders for the imprisonment of detainees for crimes without proper evaluation – this was a clear usurpation of the judiciary by the executive and the legislature. The purpose of the separation of powers doctrine is that the arms of government should be separate, so as to ensure a prudent system of checks and balances and one free from authoritarianism.

There are some who would argue that the earlier regulations governing the state of public emergency ought not to be used to judge the current. However, the men involved in the Everton Douglas v Attorney General matter would disagree. Among those five men (one has since died), it is noted that their detention was treated contrary to laws that govern arrests and detentions. In fact, there were approximately 1,864 days lost among the men; with one man, Gavin Noble, being detained for 458 days. JFJ lent assistance to the matter.

To address the high crime levels, successive governments have introduced paramilitary units, with some members over the years making questionable comments that seemingly (unofficially) endorsed extrajudicial killings. Even in the face of questionable law enforcement officer involved shootings, such as the Romario Sterling and Terron Hewitt incidents, there have been a lack of strong condemnation by the government and no clear advocacy for the rule of law to be respected and upheld.

HISTORICAL PRECEDENTS

Citizens should reflect on historical precedents, such as the 1974 Gun Court Act and the Suppression of Crime Act. While it was intended to address rising crime, the outcomes were detrimental where the government granted broad law enforcement powers, no provision of bail for those accused, undermining of one’s right to jury trial and a legislation with mandatory sentence of indefinite detention for those convicted of a firearms offence. Several cases, such as the Hinds et al v the Queen, challenged the egregious provisions in the acts, several of which were consequently deemed unconstitutional. For those who may ask why the historical reference, it is critical to reflect on then and now, and which segment of society paid the high cost for those unsustainable rights breaching ‘tough-on-crime’ laws. The rich and the middle-class can be assured that it wasn’t them.

JFJ promotes state accountability and safeguarding the rights of citizens from state abuse. In a society where the state wields significant power, poor and marginalised individuals often find themselves at a disadvantage when their rights are infringed upon. A robust civil society acts as a counterbalance to state authority. JFJ uses this simple analogy: ‘When the gun man is breaking down your door, you call the police for protection, but when it is the police who are breaking down your door, who can you call?’

People should reject the flaccid arguments from self-serving politicians, and disappointingly from some media practitioners, who indicate that JFJ and others ‘paint a bad picture’ of Jamaica to get funding. Given the source of funding for civil society is from the same pot as the government’s, well-thinking citizens must ask, is the government also cooking up lies on the country to the various foreign donors? One must be sceptical of such tactics and understand that efforts to undermine civil society is a blatant attempt to silence those who dare to hold the government accountable so that rule of law can be upheld.

To the individuals and organisations who arduously defend human rights and the rule of law, self-reflection and introspection are virtues that are valuable but they should be affirmed against populist criticism.

We also urge Jamaicans to understand that when governments attempt to undermine the rule of law, there are far-reaching consequences that rarely result to the benefit of the poor and the disenfranchised. Jamaica is not the “Wild West”; we are a nation governed by a constitution that emphasises the protection of human rights. The call for an all-powerful executive to combat crime rests on the assumption that such power will be relinquished once the crisis has passed. History has shown us that power, once granted, is rarely returned willingly.

As we navigate these challenging times, citizens should engage in constructive dialogue about human rights and the rule of law. We must ensure that our collective safety does not come at the expense of our hard-fought rights and freedoms.

Mickel Jackson is the executive director of Jamaicans for Justice. Send feedback to communications@jamaicansforjustice.org and columns@gleanerjm.com