Fri | Oct 30, 2020

SOE dilemma - Court rules against unconstitutional detentions

Published:Saturday | September 19, 2020 | 12:15 AMRomario Scott/Gleaner Writer
A cop searches a passer-by at a state of emergency checkpoint at North Street in central Kingston moments after Prime Minister Andrew Holness announced a 14-day crackdown in the Kingston Western and Central police divisions on Sunday, June 14.
A cop searches a passer-by at a state of emergency checkpoint at North Street in central Kingston moments after Prime Minister Andrew Holness announced a 14-day crackdown in the Kingston Western and Central police divisions on Sunday, June 14.

A landmark Supreme Court decision ruling as unconstitutional the months-long detention of five men without charge could doom the Holness administration’s much-touted plans to use states of emergency (SOEs) as a long-term crime-fighting measure.

But one attorney for the Government has made it clear that the judgment should be appealed, appearing to be baffled by some of the reasonings by Supreme Court Justice Bertram Morrison.

Justice Morrison, in a judgment published on Friday, ruled that the detention of five men under the SOEs was unconstitutional.

Courtney Hall, Everton Douglas, Nicholas Heath, Courtney Thompson, and Gavin Noble are the five men who are at the centre of the judgment.

In the 64-page judgment, Justice Morrison outlined why the detention of the men was unlawful.

According to Morrison, there was no justification presented by the Government to facilitate a proportional assessment of any legitimate objective behind the claimants’ detention.

“This I find to be the egregious overstepping of the bounds of the power of the executive,” he said.

The Supreme Court justice further ruled that the detention orders were also unlawful.

Detention orders under the SOEs were issued by the national security minister.

Justice Morrison ruled that the use of the orders for the detention of the men for criminal cases without proper review breached the doctrine of separation of powers.

Under the Emergency Powers Regulations, a tribunal is set up to hear a claimant’s objections to his detention.


Justice Morrison is of the view that the tribunal should not give a direction for the detention of the claimant in circumstances that conflict with his constitutional rights.

In his judgment, Morrison contended that the Emergency Powers Regulations 30 and 33, in relation to the detention orders and appearance before a tribunal, gave unfettered discretion to the police and national security minister. This is in relation to the committal of persons to penal institutions or jail for criminal offences.

Justice Morrison said those regulations violate the basic structure of the Constitution regarding separation of powers, the rule of law, and the protection of fundamental rights. He noted that the claimants were entitled to a fair procedure for depriving them of their liberty.

The Supreme Court justice charged that the regulations were too laxly worded and vague, thus providing too general a power to the national security minister.

He has ruled that the detention of the men at the will of the executive is violative of the Jamaican Constitution.

Morrison further ruled that aspects of the Emergency Powers Act were at odds with the Constitution.

He notes that the Act makes reference to parts of the Constitution that have been repealed.

Attorney-at-law Wentworth Charles, who represented the Ministry of National Security, said the judgment should be sent to the Court of Appeal to be examined.

“The judge seems to be saying that he is not hearing a challenge to the constitutionality of the declaration of the state of emergency. But he has, in fact, made a ruling on that.

Charles contended that while a single judge could hear a habeas corpus application and determine if that person is lawfully detained, he ought not to pronounce on the constitutionality of the declaration of an SOE.

“That should go to a full court,” he said, in support of an opinion shared, months ago, by Attorney General Marlene Malahoo Forte.

Charles argued that the implication of the ruling would mean that the governor general’s right to exercise a proclamation for the declaration for SOEs would have to be examined.

The judgment could have implications for public safety but may also serve as an embarrassment for the prime minister, who has lost a number of constitutional battles over the years, including the push to implement national identification legislation.

The Holness administration had said that it had intended to use SOEs for up to seven years to suppress violent crime.

Murders have declined by more than four per cent, year to date, but some of that success has been linked to coronavirus restrictions such as curfews over the last six months.

An RJRGLEANER-commissioned Don Anderson poll, conducted between July 24 and August 3, found that 67 per cent disagreed with the Government’s decision to discontinue SOEs, while only 33 per cent agreed.

Seventy-one per cent of respondents in the survey believed that SOEs were effective in fighting crime.

The poll found that a majority of Jamaican voters (66 per cent) say they believed that SOEs should be used as a long-term measure. Thirty-four per cent disagreed.