Gov’t to review two-thirds majority SOE voting bar

Charging that the two-thirds voting majority bar for the extension of states of emergency (SOE) poses a significant challenge and may be used as a political ploy, the Government signalled on Sunday that it was reviewing the requirement as part of wider constitutional reform of the Emergency Powers Regulations.

However, Attorney General Marlene Malahoo Forte said that the administration had not taken a definitive decision on tinkering with the vote provision in the Constitution and committed to “cross-aisle collaboration and consensus”.

Prime Minister Andrew Holness expressed unease with the current provision, suggesting that it could cause difficulties for the Government, referencing the SOEs imposed in seven police divisions which collapsed in November 2021 after a three-month extension bid scuppered in the Senate.

The Government failed to get the single opposition vote in the 21-member Senate to green-light the extension with a two-thirds majority.

“Imagine if there is a situation where there is a threat that the Government needs to act and maintain its action and the Opposition says we are not convinced of that threat, even if we share information, even if it is obvious and lives are lost. Then the Government is hobbled in its ability to respond to the threat, which is what we are now seeing played out with the inability to have the SOEs executed,” Holness said during a Jamaica House press conference on Sunday, where he announced the declaration of a zone of special operations (ZOSO) in Parade Gardens, the epicentre of a bloody gang feud in central Kingston.

“There is a clear and present danger, there is a clear threat, but we are not able even though we have attempted to because the Opposition has blocked it.”

While arguing that emergency powers were originally designed to respond to external enemies and not against citizens, Holness said that the SOE law was not fit for purpose to tackle domestic threats, especially in the context of the Charter of Fundamental Rights and Freedoms.

Murders in Jamaica soared by 10 per cent to 1,439 in 2021, and spiralling violence was highlighted in an emotional address by the prime minister during a National Day of Prayer service last Wednesday.

The Kingston Central Police Division recorded 79 murders in 2021, a 55 per cent increase on the year-earlier tally.

BLIND TO ISSUES

“So we are in a state of emergency, and whether or not you agree that it is constitutionally so is a different issue from what the actual state of play is. ... Anyone who doesn't recognise that we are in a state of emergency, which by definition means you have to use exceptional powers to treat with those issues, then those persons don't live in Jamaica, they are blind, or they have a particular political motive to see the Government's efforts fail for their political benefits.

The attorney general acknowledged concerns that SOEs may be complicated because “there is competition for the political reins”.

“We will have to look at everything, and it is not to be seen as taking power from anyone, but the truth is that in a democracy, an elected government is elected to govern and must govern,” said Malahoo Forte.

Opposition Spokesman on National Security Peter Bunting said that it was willing to cooperate and make constructive recommendations to help the Government combat crime but accused the prime minister of continuing to “blatantly lie to the public”.

Bunting took issue with Holness' statement that there was an agreement from the Opposition on the threshold that would make SOEs justifiable.

According to Bunting, the opposition stated that it would support the use of the military, as permitted by law, in geographic areas where the homicide rate is above 32 per 100,000. That recommendation, said Bunting, did not translate to the deployment of the military with emergency powers.

“The Government continues gaslighting the public on this issue even though the prime minister and his ministers (Dr Horace Chang and Matthew Samuda) know it to be false,” he said.

“The Opposition has repeatedly stated that it will not be supporting an unlawful declaration of SOEs or the unlawful use of the military.”

Attorney-at law Isat Buchanan, in the meantime, said there is no need for the Government to revise how emergency powers are used.

Buchanan co-represented five men whose detention under emergency powers was deemed unconstitutional by the Supreme Court. The Government has appealed the ruling.

The defence lawyer believes that lowering the two-thirds majority threshold, to simple majority, would be “a way for the Government to take a lazy approach to fight crime”.

“Taking power away from the Opposition is to offend the Constitution because one must remember that those checks and balances are to ensure that Government do not take an authoritarian approach and the result of that, the Government will become pernicious, which is harmful to the people,” said Buchanan, who is also chairman of the People's National Party's Human Rights Commission.