R.N.A. Henriques | SOEs and the rule of law

“All modern civilised societies are built on two pillars; democracy and the rule of law. A critical lesson for 2019 is to remind ourselves of the importance of the second of these.”

– Lord Neuberger, former president of the Supreme Court of England.

In 2017, there were 1,660 homicides in Jamaica. As a consequence of this high incidence of homicides, the Government reacted by securing the passage through the Parliament of the Law Reform (Zones of Special Operations) (Special Security and Community Development Measures) Act.

This act empowers the prime minister, acting on the advice of the National Security Council, to declare an area to be a zone of special operations (ZOSO). Within such zones, the act empowers the security forces to search a person, vehicle, or place without a warrant if they reasonably suspect that an offence has been, is being, or is about to be committed. They may also establish cordons and declare curfews in such zones.

This act was applied in Mount Salem in St James on September 1, 2017, and in Denham Town in St Andrew on October 17, 2017.

In 2018, the Government adopted an additional device. States of emergency (SOEs) were declared for St James on January 18, 2018; for St Catherine on March 18, 2018; and for Kingston and St Andrew South on September 23, 2018.

Both types of measures were taken implicitly with the approval of the Opposition, who, although initially stating that they would oppose ZOSOs, did not do so.

However, when the Government proposed the extension of the SOE, which by virtue of Section 20(3) of the charter requires approval by resolution supported by two-thirds majority of all members of both Houses of Parliament, the Opposition did not give the necessary support to the SOE extensions. This caused widespread controversy and public outcry as the number of homicides had declined during the SOEs.

Dr Lloyd Barnett stated: “The refusal of the Opposition to give the support necessary for the extension of SOEs has led a national debate, which has been conducted to a great extent without regard for the constitutional principles by which we are bound, or the rational analysis which the situation demands.”

Consequently, Dr Barnett published an article in the Sunday Observer of January 20, 2019, titled ‘State of emergency, ZOSOs, and the fundamental rights of individuals’, “to explain and clarify the basic principles and some of the rational considerations”. Dr Barnett indicated that there is a limitation to the powers exercisable during the SOEs as set out in the Constitution and they were not as extensive as some persons seemed to think. On Tuesday, January 22, 2019, the same newspaper published an editorial captioned ‘So while the grass is growing, the horse must starve, Dr B?’.

The editorial misrepresented what Dr Barnett had stated and concluded with a question for Dr Barnett: “On what basis has he determined that the SOEs are no longer necessary, when the leadership of the security forces have said otherwise?” This was a misrepresentation of what Dr Barnett had stated.

On the contrary, what Dr Barnett had said is that it warrants serious and rational debate to determine whether or not there ought to be an extension of the SOEs; and in his view, the debate had not been conducted on the basis of relevant data and in the light of the constitutional principles.

Dr Barnett responded by letter stating that there is a duty to satisfy the constitutional criteria and reaffirmed the basis for which it was necessary to determine any extension of the SOEs. He also took the opportunity to state that it is very dangerous that the mere fact that the leadership of the security forces say that it is necessary to establish SOEs is enough. He concluded: “This is the basis on which police states and military dictatorship operate. It is not what our Constitution requires.”

As Dr Barnett pointed out during the SOEs, 75 per cent of the detainees were released within 48 hours, and those who had the opportunity to have their cases referred to a review tribunal were ordered to be released. Despite this background, the commissioner of police ventured to state that most of the detainees were deserving of detention. The question then, is why were they released? The answer is obvious, but the controversy continues.

An article was published in The Gleaner of March 12, 2019, captioned ‘Political blunder: Opposition stands alone as Jamaicans side with Government on SOEs’. There was also a letter of March 14, 2019, published in The Gleaner captioned ‘The voice of the people is the voice of God’. It is unnecessary to recite what the article and the letter contain, as they are all endeavouring to make the same point: that the popular view is that the SOEs should continue, without any basis and rational reasons to support the opinion.

An important point made clearly by Dr Barnett is that the provisions established by the charter implicitly exclude any competing emergency methods such as ZOSOs, which do not conform with the constitutional standards and leave it to the executive to impose stringent restrictions on the liberty of the citizens. On that basis, the provisions of ZOSO are clearly unconstitutional and consequently illegal and void.

THE CONSTITUTION AND THE STATE OF EMERGENCY

In this paper it is not intended to deal any further with ZOSOs, which have been effectively dealt with by Dr Barnett, except to point out, in addition, that if one reads the original Chapter III of the 1962 Constitution and then compare it with the Charter, it clearly reveals that the provisions in the ZOSO statute are not authorised by the charter, and are in clear conflict with its provisions. This will be pointed out when dealing with the rights of the citizens under the state of emergency.

Jamaica’s constitutional system is one in which the Constitution is the supreme law of the state. In Jamaica, the Constitution is to be found in the Jamaica (Constitution) Order in Council 1962. The Constitution which is a Schedule to the Order captioned, ‘The Constitution of Jamaica’ at Chapter 1 sets out the effect of the Constitution in Section 2, which provides:

“Subject to the provisions of sections 49 and 50 of this Constitution, if any other law is inconsistent with the Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.”

This is further reinforced by Section 48(1) which confers power on the Parliament to make laws, which provides as follows:

“Subject to the provisions of the Constitution, Parliament may make laws for the peace, order and good government of Jamaica.”

The fundamental rights and freedoms were contained in Chapter III, which provided in Section 13:

“Whereas every person in Jamaica is entitled to the fundamental rights and freedoms of the individual, that is to say, has the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely:

(a) life, liberty, security of the person, the enjoyment of property and the protection of the law;

(b) freedom of conscience, of expression and of peaceful assembly and association; and

(c) respect for his private and family life, the subsequent provisions of this Chapter shall have effect for the purpose of affording protection to the aforesaid rights and freedoms, subject to such limitations of that protection as are contained in those provisions being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice he rights and freedoms of others or the public interest.”

The rest of the chapter had set out the various rights which are being protected by its provisions but there were many general qualifications. The Constitution defined what is a period of public emergency and governed, how it is proclaimed, the permitted basis and purposes, the duration and extension thereof. It is clear, therefore, that public emergency measures were from this time specifically regulated by the 1962 Constitution.

Chapter III of the 1962 Constitution was repealed on April 8, 2011, and replaced by a new Chapter III, the Charter of Fundamental Rights and Freedoms. The charter is significantly different from the previous Chapter III as exemplified by the new Section 13, which states in positive terms that the State has an obligation to promote universal respect for and observation of human rights and freedoms.

This becomes even clearer in Section 13(2)(a), which states:

“This chapter guarantees the rights and freedoms set out in Subsection (3) and (6) of this section and in sections 14, 15, 16 and 17.”

Moreover, to reinforce the provisions of the Charter, Subsection (2)(b) provides as follows:

“Parliament shall pass no law and no organ of the State shall take any action which abrogates, abridges or infringes those rights.”

The rest of Section 13 from Section (3)(a) to (3)(s) sets out the several rights, which are protected.

It is significant that the effect of Subsection 13(2)(b), with respect to the limitation on Parliament’s power to pass laws, which abrogate the protected rights is further emphasised by Section 13(4) which provides:

“This chapter applies to all law and binds the legislature, the executive and all public authorities.”

The provisions in the charter at sections 13(9)(10) and (11) deal with the right of citizens during the state of emergency have distinct differences between sections 15 and 16 of the previous Chapter III. A comparison of Section 15 of the previous Chapter III will show that insofar as Section 15(1) is concerned, the charter has omitted some of the earlier provisions. Similarly, a detailed comparison reveals that the charter has significantly altered many of the provisions in the previous Chapter III.

PROTECTING FUNDAMENTAL RIGHTS

It is manifestly clear that the charter was enacted for the purpose of strengthening the protection of the fundamental rights and freedoms of the individual which are guaranteed by the Constitution by removing provisions that were either too wide or ought not to have been in the previous Chapter III. It is, therefore, obvious that when considering a state of public emergency in 2018, the new provisions made in the charter must be carefully considered. It is of paramount importance to recognise that a review of the charter clearly shows that there is only one section that deals with the impact of SOEs on the fundamental rights of individuals.

While Section 20 states what a period of public emergency means and provides for the proclamation of the governor general for that purpose and the duration thereof, this section does not deal with its effect on the citizens’ rights during the same.

As stated earlier, the only provision section that contains any provision authorising the restriction or abridgement of the rights of citizens during the state of emergency is Section 13, and these are to be found in subsections (9), (10), and (11). There is no other section in the charter permitting the infringement or suspension of fundamental rights during a state of emergency.

A review of Section 13(9) shows that it deals exclusively with the extent that the law authorises the taking in relation to persons detained or whose freedom of movement has been restricted by virtue of that law for the purpose of dealing with the situation that exists during a period of public emergency or public disaster. The only constitutional rights of the citizen that are suspended during a state of emergency are those specified in Section 13(9)(10) and (11) – the freedom from detention, freedom of movement and the right to due process by access to the court on being detained.

All the other fundamental rights and freedoms set out in the Charter remain in full force and effect during an SOE. There is no other section of the charter that suspend those rights not mentioned in Section 13(9), (10) and (11).

Section 13(10) is of paramount importance, for it provides that any person detained under Section 13(9) is entitled to request a review of his case by an independent and impartial tribunal appointed in accordance with the provisions therein. Accordingly, to that extent, there is a modified right of due process for detainees.

Section 13(11) is of cardinal importance as it differs from what was contained in the previous sub-sections 15(7) and 16(5). This will be illustrated when dealing with the rights of the citizen in more detail.