Gordon Robinson | Unconstitutional! States of emergency smack of panic, incompetence

Two weeks ago, I tried to explain why I considered the three states of emergency (SOEs) declared recently to be contrary to the constitutional provisions permitting SOEs to be promulgated.

I still maintain that the very first SOE was an admission of failure by the security forces, which failure was only emphasised by its territorial 'success' which, apparently contrarily, has led to two more SOEs having to be declared. Success? Schmuccess!

I opined then that the purpose of SOEs was to deal with attacks on the State itself, and this extreme remedy was never intended to be misused to address citizen-on-citizen crime. The Constitution provided for SOEs to address external threats like war or natural disaster, as well as internal threats (e.g., terrorist activity) so unnatural or extensive "as to be likely to endanger the public safety", a phrase I suggested related to state agencies' ability to protect citizens' general safety or welfare and not threats to individuals.

To emphasise that the Constitution anticipated an extraordinarily unusual threat, I pointed out the promulgation of SOEs was one time the governor general (GG) was separated from his rubber stamp and the onus placed on Government to "satisfy" him that one of these threats existed. The promulgation of an SOE was for the GG alone and NOT within the purview of the prime minister or any other government minister. Surely, that extraordinary process isn't intended as a crime-fighting tool?

In looking at the constitutional imperative for the GG to be "satisfied" about the nature of the threat, I wrote: "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."

What I was trying to say, within word-count restrictions savagely imposed on columnists, was that there's a distinction between a legislative provision that an authority must be "satisfied" (a subjective condition that can't be disproved in court) and one in which it's provided there should be "reasonable suspicion" or "reasonable" anything which gives rise to an objective test that a court may apply when reviewing a particular authority's decision.

So, I got a call from an old domino-playing pal who shall remain nameless because even if I disclose only his domino moniker, his cape and mask would be stripped away and his secret identity exposed for all to see. He agreed with 95 per cent of the column but pointed me to Section 20 (5) of the new charter [the bases for an SOE declaration appear in 20(2)] that provides:

"The court shall be competent to enquire into and determine whether a proclamation or resolution purporting to have been made or passed under this section was made or passed for any purpose specified in this section or whether any measures taken pursuant thereto are reasonably justified for that purpose."

Ding! Ding! Ding! Give the man a (Domi)No Prize! It remains true that only media, using their peculiar role as bastion of transparency in government, can enquire into whether or not GG was "satisfied" or simply took a nap while some lobotomised minion wielded his rubber stamp. But under Jamaica's new Charter of Rights, the court is allowed to enquire into whether any of the three prescribed foundations for the SOE existed at the time of its promulgation. If not, then it follows that the SOE was NOT "made or passed for any purpose specified in this section ... ".

Since it's my opinion that ONLY threats to the State, as the State, or to any of its agencies set up for the welfare or safety of the public are properly the basis of any declaration of any SOE, it's obviously also my opinion that these three SOEs, if challenged in court, would be vulnerable to being set aside. After all, the PM himself admitted that the SOEs were called "to address LONG-STANDING CRIME AND PUBLIC-ORDER ISSUES [my emphasis] ...". Apparently, this is what the Government put to GG to "satisfy" him.

This vital subsection [20(5)] protecting citizens' rights goes even further. Even if an SOE is properly declared, a court can look into "any measures" implemented during the SOE to decide whether those measures "are reasonably justified for that purpose". Remember "that purpose" isn't crime-fighting. The words 'crime' or 'offence' don't appear in Section 20 (2) of the Constitution. Both words appear in the Constabulary Force Act.

"That purpose" isn't to paper over Government's inability to corral runaway crime. "That purpose" doesn't allow Government to escape its solemn responsibility to provide a professional, effective police force for the protection of its citizens against crime and to keep the peace.

This brings me to the security forces' tactics used pursuant to these SOEs. Whatever else the JCF-JDF may be doing, it seems apparent that the areas affected are being flooded with members of the security forces, and hundreds of youngsters are being scraped up and "detained" without charge for extensive periods of time. Frankly, I don't see why an SOE would be needed for that. Extra police can be deployed anywhere at any time, and persons have been detained en masse in Jamaica for decades. Remember Agana Barrett?

Not only is this 'strategy' counterproductive (few, if any, convictions are being obtained), arbitrary, and unnecessarily brutal, it seems to me that this violates every notion of natural justice we expect to be offered to us by security forces. Maybe they haven't scraped up your son yet, so you can afford a feeling of righteous superiority. But if this goes on long enough, I promise you they will come for your son. By that time, there'll be nobody to help you because they'll all be 'detained'. If they come for you this morning, they're coming for me tonight.

Not only is this a disgraceful injustice born of panic and incompetence, but it's also, in my opinion, a clear breach of the very Emergency Regulations promulgated by Parliament to regulate SOE detentions. Regulation 30 of the Emergency Powers Regulations 2018 reads:

"(1) An authorised person may arrest, without a warrant, and detain, pending enquiries, any person whose behaviour is of such a nature as to give reasonable grounds for suspecting that he has:

(a) acted or is acting in a manner prejudicial to the public safety; or

(b) has (sic) committed, is committing, or is about to commit an offence against these Regulations."

So this arbitrary scraping up just ain't kosher. Before any person can be detained, the arresting officer must see "behaviour" that's "of such a nature" as to provide "reasonable grounds for suspecting" that the detainee presents some danger as specified in the regulation.

There's that troublesome phrase: 'reasonable suspicion'. This isn't the subjective "if the authorised person is satisfied". The authorised officer MUST have "reasonable grounds", which means he must, if asked, explain to a potential detainee and, eventually, a court EXACTLY what the detainee was doing to attract detention under the regulations. Suspicion isn't enough. 'Intelligence' isn't enough. Whisper or rumour isn't enough. "Mi know him as a gunman" isn't enough. There must be BEHAVIOUR that gives rise to REASONABLE SUSPICION.

Instead, the JCF rounds up the usual suspects, detains them indefinitely in most disgusting conditions, and trumpets each SOE as a 'success' but finds itself having to beg for others.

But what else should we expect from a JCF that's "unprofessional and beyond repair" and "birthed out of a glorified security guard system"? Is not me seh so. Is National Security Minister Horace seh so. Police Commissioner seh Horace kareck. And I endorse them both. Whole. Heartedly. I would only add the adjective "corrupt"!

By: failing to reform the JCF; procrastinating urgently needed JCF de-corruption; equipping JCF with phantom used cars instead of modern crime-detection equipment; providing only the most token training; declaring fake SOEs to cover up JCF incompetence and corruption; extending these fake SOEs repeatedly; unlawfully sweeping up young men indiscriminately; and chest-beating announcements of crime-fighting success from this farcical chain of events, we're sowing the wind. As sure as s**t is stink, we'll reap the whirlwind.

Peace and love.

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