No compromise, no half-loaf

A.J. Nicholson, Contributor

The question that the front-runners in the harsh, sometimes vulgar and uncompromising criticism levelled at the Opposition for withholding its support for the resolution to have the period of public emergency extended for a further one month have deliberately chosen not to address is: Why did the Government downright refuse to accept the 15-day extension proposal?

The state of emergency would even now still be in place, with the prospect of being extended. By whose act, then, has the state of emergency been brought to an end?

For present purposes, the Jamaica Constitution provides, at section 26 (5) (b), that: "A proclamation made by the governor general (declaring a state of public emergency to be in existence) shall not be effective unless it is declared therein that action has been taken or is immediately threatened by any person or body of persons of such a nature and on so extensive a scale as to be likely to endanger the public safety or to deprive the community, or any substantial portion of the community, of supplies or services essential to life."

The section also dictates that the governor general, before making such a proclamation, must be satisfied that those conditions exist. And, he would have been so satisfied when a "body of persons" had mounted barricades in Tivoli Gardens, engaged in attacking and burning of police stations, and daring the security operatives of the State to enter a certain area of the capital to serve an extradition warrant on a fugitive.

Extension of proclamation

According to the constitution, such a proclamation shall remain in force for one month or for such longer period, not exceeding 12 months, as the House of Representatives may determine by a vote of 31 of its members. The proclamation may be extended by the House for a period not exceeding 12 months, that is to say, for one day and up to 365 days, also by means of a vote of 31 of its members, as provided for by section 26 (6) (b).

By parity of reasoning, in like manner as the governor general must be satisfied that the constitutionally required conditions exist before he can make the proclamation, the members of the House of Representatives must also be so satisfied that such conditions exist before they can vote in favour of any proposal for extension. Acting upon any other type of information would not merely render the representative of the head of state and members of one arm of the legislature irresponsible, but they would be openly flouting the constitutional provisions.

In the month of May, the governor general declared in a proclamation that a state of public emergency existed in the Corporate Area. Public safety was endangered by the action and threatened action of a body of persons. The House and the public were advised that the duration of the public emergency would be for a period of one month. During that one-month period, the barricades in Tivoli Gardens were removed, the body of persons was put to flight and some might have been killed in the incursion into the lair of the fugitive, no police stations were under attack, and the strength of the mother of all garrisons had been sapped.

Sought extension

In June, the Government sought the approval of the House to extend the period of public emergency for one month and to include the parish of St Catherine. The reasons given were that the security forces had asked for the extension and that the crime rate was showing a downward trend. The Opposition members were of the view that those reasons did not accord with the constitutional requirements for an extension and, in any event, the Government had given no indication as to the management and operation of the state of emergency.

The Opposition, nevertheless, gave their assent to the proposal, advising the Government that the House would have to be provided with meaningful information which satisfied the conditions laid down in the constitution for the approval of any further extension. In July, the Government, by another resolution tabled by the prime minister, sought a further one-month extension, giving the same reasons for the proposal, namely, that the security forces had sought the extension and that the crime rate continued to trend downwards.

The Opposition sought certain information from the prime minister and the Government in order to satisfy itself that their assent may properly be given. The Opposition, first, asked the Government to justify the constitutional pedigree of the reasons that grounded the request for the House to approve the resolution. For, the House had to be satisfied that the conditions laid down in section 26 of the Jamaica Constitution had been met, before its approval could be given. Otherwise, the members would be sanctioning the use of emergency powers as a crime-fighting tool, which is not allowable under the provisions of section 26. The prime minister refused to provide any view, and the public must surely be interested to be made aware of the advice of the attorney general on the issue.

Second, the prime minister was asked to outline the programme and the tools that the Government and the security forces intended to employ when the period of public emergency came to an end. The prime minister refused. And yet, within less than 48 hours after the debate on the resolution, the leadership of the security forces was able to advise the public of such a programme and the strategies to be used. Surely, that programme was not developed overnight.

Third, the Government was asked to address the complaint that the thousands of persons who had been detained were being held in inhumane and degrading conditions. This was of great significance, since the detainees, under the emergency powers, had no access to the courts and could be held for inordinately long periods without any charge being preferred against them. Indeed, experienced attorneys had publicly complained that the areas provided for holding the detainees approached conditions of torture. And, of the 4,000 plus persons detained, only 20 plus of them have been charged with any offence. The prime minister chose to ignore the Opposition's queries and to sidestep the issues raised.

Fourth, the Opposition suggested that the Government speak to the charge that, in several instances, there was no documentary proof that the detainees had been given any reason for their incarceration - a fundamental right guaranteed under our Constitution. The suggestion fell on deaf ears. So did questions relating to the secrecy surrounding the Government's approach to the strengthening of the criminal justice system, the passage of the Charter of Rights and Freedoms, and issues relating to meaningful social intervention in challenged areas of the society.

Opposition approved

Despite the silence on these matters which were, and remain, issues of paramount public interest, including the fundamental question of whether the request for the extension satisfied the test laid down in the constitution, the Opposition stated its willingness to approve of an extension for a period of 15 days, after which the matter would be re-examined. This was rejected, even in the circumstance of the Government side not having the required numbers present in the Chamber to have the resolution carried by its own votes. No compromise; one month or nothing; no question of half-a-loaf being better than none. And, the later attempt by the commissioner of police to justify the one-month-or-nothing extension does not hold water, for, the security forces are now obliged to conduct their operations without the cover of the state of emergency.

This is not a matter that has troubled the critics of the stance taken by the Opposition. But the basic and fundamental question is: Why did the Government reject the 15-day proposal? For, there has to be a reason. Why would the prime minister and the Government be prepared to deny the security forces their request for an extension? Was it a sham resolution, knowing that they did not have 31 members present in the House and hoping that the Opposition would withhold its support?

Divided on extensi0n

Powerful and strident voices in the society strongly supported an extension of the state of emergency, although the country was divided on the issue. The crime monster has caused severe unease and fear among all law-abiding citizens over a long period of time. Was the prime minister prepared to gamble that those who supported the retention, some say for whatever length of time, would be ready to ignore what they see as constitutional and human rights carping, and the proposal of the Opposition?

Was the Government searching for something to turn the spotlight of public disapproval away from its devastating bungling in relation to the recent nine-month, ill-conceived machinations which have caused the credibility and trustworthiness of the prime minister to take a steep nose-dive? His credibility is now under further examination.

For, if he was unwilling to have the state of emergency remain in place, even with his failure to give cogent and detailed reasons for the request for extension, his untrustworthiness as leader of Jamaica's Government continues to be deeply troubling.

A.J. Nicholson is Opposition spokesman on justice. Feedback may be sent to columns@gleanerjm.com.