SOE ULTIMATUM - Lawyer: Free detainees or face legal assault
Published:Thursday | July 23, 2020 | 12:33 AMLivern Barrett/Senior Staff Reporter
One of the attorneys who helped to win the freedom of five men being held under the state of emergency (SOE) has warned that the Government has until Monday to release all detainees or face a wave of legal challenges.
Isat Buchanan made that comment on Wednesday hours after he and other human-rights attorneys, John Clarke and Seheeka Richards, got a judge of the Supreme Court to declare that the continued detention of the five men under the SOE was unconstitutional.
According to Buchanan, the ruling by Justice Bertram Morrison means that the Government can immediately begin to release all detainees being held under the SOE, which has been credited with the two per cent reduction in murders this year.
If the Government fails to act by Monday, the attorney said he plans to file petitions in the Supreme Court seeking the release of all his clients being held in detention centres. Clarke is also expected to file habeas corpus petitions on behalf of his clients, Buchanan indicated.
“Detention, for me, is the most egregious act or the most egregious punishment that can be meted out on a human being or a citizen of this country. I believe it is almost criminal to allow persons to be detained, having realised that it is unconstitutional to do so,” he told The Gleaner.
“One cannot wait on the State to act because a day in prison is like a thousand years.”
The attorney acknowledged that the outcome could be different with another judge but said that he had confidence that other Supreme Court justices would come to the same decision.
“I am aware that the decision [of Justice Morrison] is persuasive, but my submission is that the position of myself and Mr Clarke is that the breach is clear. Their treatment of a habeas corpus and breaches of the Constitution they do not take lightly,” he said.
Up to late Wednesday, Attorney General Marlene Malahoo Forte had not responded to a request for comment on the impact of Morrison’s ruling.
The decision was handed down in the Supreme Court in separate habeas corpus petitions filed on behalf of Everton Douglas, Nicholas Heat, Courtney Hall, Courtney Thompson, and Gavin Noble. Heat has been in custody for more than a year without being charged with any criminal offence.
Morrison also ordered that they be brought to court on Monday, when they will be freed.
The attorneys for the five men argued, among other things, that the SOE, along with the regulations, was brought into effect based on a repealed section of the Jamaican Constitution.
“That, in and of itself, would mean that the action of the continued detention of the men who the minister [of national security] issued detention orders for is void as in it does not exist,” Buchanan explained.
Morrison agreed, indicating, in his oral judgment, that “a man’s freedom can’t be arbitrarily taken away without a final determination by the court”.
“The EPA [Emergency Powers Act], the [Emergency Powers] Regulation, and detention orders are in breach of the Constitution,” he declared, while noting that his written decision will be handed down by the end of the court term, scheduled for later this month.
He said that it cannot be that the Emergency Powers Act and the Emergency Powers Regulations can be so “cavalier” in its treatment of the liberty of a citizen.
According to Morrison, the power to detain “can’t be so intermittently exercised to deprive a man of his freedom”.
“In a free and democratic society, a man can’t be detained ‘til the end of the [state of] emergency. This is unconstitutional,” he added.