Pre-emptive strike

Amid a pending ruling on the constitutionality of specific detentions under states of emergency (SOE), the Government insisted Sunday that it has the power to hold persons without preferring charges as a pre-emptive mechanism to prevent crime.

The declaration comes in the wake of Sunday’s imposition of emergency measures in seven police divisions – St Andrew South, Kingston Western, Kingston Central, Kingston Eastern, St James, Hanover, and Westmoreland. Those geographic zones represent 664, or 54 per cent, of the 1,240 murders recorded up to November 12.

Attorney General Marlene Malahoo Forte said unequivocally, however, that detentions as long as one year without charge – a concern that featured in a September 2020 Supreme Court ruling that five men were held unlawfully under SOEs – would not be tolerated in the newest iteration of the security measure that was last used in August last year.

“When the regulations are laid in the Parliament, you’ll see the new detention provision. You’ll see the time period that is permitted for preventative detention where it is reasonably necessary to detain a person from preventing him or her from committing an offence, the time period, and the time period for when a review is done,” Malahoo Forte said at a Jamaica House press briefing on Sunday.

The constitutionality of such detentions came under scrutiny in a Supreme Court ruling in the case of Everton Douglas et al v the Ministry of National Security, the Commissioner of Police and the Attorney General.

The Government has appealed the ruling.

But the attorney general was adamant that the Holness administration was not willing to wait on the high court decision to prevent its “day-to-day running” of the country.

“In relation to detentions, it is important that you understand that not everyone who is or will be detained in the SOE will be charged with an offence. The law permits detention where it is reasonably necessary to prevent someone from committing, an offence and that will depend on what the assessment on the ground is,” Malahoo Forte said.

She further sought to dispel the notion that the Government may have overstepped its power and that the new SOE may be in contempt of the high court ruling.

“If and when the court makes pronouncements otherwise, we will revise, but we still have to act and take into account those pronouncements and make corrective actions if needs be,” Malahoo Forte said.

However, Isat Buchanan, who represented the five former SOE detainees cited in the constitutional ruling, and Public Defender Arlene Harrison Henry are of the view that the Government should have waited on the appellate court’s decision

“I am most surprised that the Government would resort to calling SOEs before a court ruling from the Court of Appeal and they haven’t withdrawn their appeal but have gone ahead and have called SOEs without that being settled,” Buchanan told The Gleaner on Sunday.

Referencing recent amendments made to the Emergency Powers Act, Buchanan was emphatic that “key for the public interest is that superficial amendments don’t cure constitutional breaches, and that’s the importance of the court”.

Harrison Henry, too, believes that it would have been more prudent of the Government to wait on the court ruling.

The public defender expressed concern that the Government seemed to be pushing the notion that detainees cannot seek recourse through the courts under SOEs via habeas corpus applications.

“The position of the Office of the Public Defender is that habeas corpus is not ruled out by a state of public emergency,” she said.

Harrison Henry urged the authorities to ensure that detainees are treated fairly and that provisions be put in place for them to access legal aid.

Further, she said resources at her office will need to be increased in order for her staff to monitor the detainee processing, accommodation, healthcare, as well as complaints of abuse from the security forces.

tanesha.mundle@gleanerjm.com