Why detentions under SOEs were ruled unlawful

Supreme Court judge Justice Bertram Morrison today outlined his decision for ruling that the detention of five men under states of emergency (SOE) was unlawful.

Morrison handed down his oral decision in July that keeping Everton Douglas, Nicholas Heat, Courtney Hall, Courtney Thompson, and Gavin Noble in custody was a breach of their constitutional rights.

The men were held under SOEs in Kingston Eastern, St Andrew South, Westmoreland, and Clarendon.

At the time, some of them were in custody for more than a year without being charged with any crime.

They subsequently filed a habeas corpus application challenging their detention.

The SOEs were lifted last month.

In his written decision today, Morrison stated that the men’s constitutional rights and the Constitution itself were being breached by their detention and the executive detention system.

He further stated that using detention orders for criminal offences was a breach of the separation of power doctrine and that this cannot be countenanced.

Here’s more from Morrison’s decision.

1. A single judge has the jurisdiction to entertain this application, pursuant to the court’s inherent jurisdiction and section 20 (1) of the Constitution. A single judge (Lord Mansfield) discharged James Somerset in 1772. A single judge in Turks and Caicos Island declared aspects of the Emergency Powers Regulations unconstitutional on  June 18, 2020, in Missick v Attorney General. Also in Herbert v Phillips and Charles v Phillips & Sealey, supra confirms the proposition as stated above. In the latter case, the Court of Appeal accepted that the court of first instant had original jurisdiction to hear the matter.

2. The situation which led to the detention of the objector does not qualify as an emergency or satisfy the situation in sections 20 (2), 20 (5) of the Constitution.

3. The claimant’s constitutional rights and the constitution itself is being breached by the current detention and executive detention system.

 4. The Emergency Powers Act (EPA), in its current form, does not apply to the current constitution since it: (a) makes references to section 26 of the Constitution which was repealed; (b) it does not qualify as a law for the purposes of section 13 (9); (c) the EPA is in conflict with the Constitution (d) there is no saving laws or modification clause to assist the court.

5. The Emergency Powers Regulation (EPR), in its current form, does not apply to the current constitution since it: (a) was passed pursuant to powers - 58 - from a legislation that cannot be utilised to pass the EPR; (b) the EPR is in conflict with fundamental rights, principles and values implicit in the Constitution (we identified 68 such conflicts – any one which would suffice as sufficient basis to strike the EPR).

6. The detention order is unlawful since: (a) it was passed on the strength of the impugned EPA & EPR; (b) the reasons for detention are ‘criminal offences’ in breach of EPA section 3 (5); (c) the imprisonment of the claimant for criminal cases without a proper review breaches the separation of power doctrine; (d) the detention order failed to show it considered it ‘necessary to exercise the control’ test outlined in the EPR, (e) the detention order failed to show it applies the standard of reasonably justifiable.

7. The proclamation contained no material information to detail the actual situation that caused the declaration by the Governor General. This, therefore, mean the defendants would fail to displace an onus placed on them to show the emergency actually exists in the material case.

8. The detention of the claimant is not a measure that the Defendants attempted to show the court is reasonably justifiable to deal with any situation that exists during a state of emergency;

9. The use of detention order for criminal offences breaches the separation of power doctrine and cannot be countenanced.

10. There is no justification presented by the defendant to facilitate a proportionality assessment of any legitimate objective behind the claimant’s detention. This, I find to be the egregious overstepping of the bounds of the power of the executive.

Based on the foregoing, I am to rule that the detention of each petitioner is unlawful.

Follow The Gleaner on Twitter and Instagram @JamaicaGleaner and on Facebook @GleanerJamaica. Send us a message on WhatsApp at 1-876-499-0169 or email us @onlinefeedback@gleanerjm.com or editors@gleanerjm.com.