Freedom and emergency

Roert Buddan, Gleaner Writer

Today is August 1, traditionally our Emancipation Day. Some Jamaicans had been uneasy that we might go into this celebration of freedom under a state of emergency (SOE). That cruel irony had not escaped them. We also celebrate our Independence this coming week. Our Independence Constitution is, in part, a document that establishes government to protect the rights and freedoms of citizens.

There are protections in chapter 3 of the Constitution from the Constitution itself, the executive, the police, Parliament and citizens, who would violate our rights and freedoms. If the Constitution is unjust, it can be changed by the people in a referendum. The Constitution protects us from the executive. When there is an SOE, we have effectively surrendered our fundamental rights to the executive arm of government.

Broad powers

The Constitution requires that the executive periodically comes back to Parliament for permission to extend a SOE. The SOE is a period when the police are given broad and arbitrary powers of detention and arrest. They have the right to search us and occupy our property. The Constitution protects us from these police powers in normal times. Under an SOE, we become a virtual police state, at least, those areas in which such police powers apply.

Parliament can revoke the SOE and, by so doing, restrain those extensive police powers. Only parliament can extend an SOE and Parliament can revoke it, at any time, by a majority vote. But we must protect ourselves from Parliament too. The Constitution gives us protection. Any law passed by Parliament, that is inconsistent with the Constitution, can be struck down by the courts. This includes any law that seeks to change the constitutional provisions governing an SOE.

The Constitution protects us citizens from ourselves as well. However, it does not make reference to any criminal group. It only speaks of a 'body of persons', and it has in mind a group bent on subverting democracy and the same rights and freedoms that the Constitution seeks to protect.

The Constitution takes this protection seriously. First, the grounds for an SOE are specific to war, natural disaster, and subversion on an 'extensive scale'. Second, the governor general can only declare an SOE for 30 days. Third, after those first 30 days, the executive has to come back to the legislature for permission to extend the SOE. Fourth, if Parliament seeks to change any law affecting fundamental rights and freedoms, the courts can strike those laws down.

Fifth, where constitutional change will affect fundamental rights and freedoms, there is a specific procedure that requires six months between the introduction of the bill and its final passage into law. Then, Parliament must pass the bill, not by simple majority, but by two-thirds. In the present situation, this would require Government and Opposition to vote together. Then, there would still have to be a referendum.

Power of the executive

There has long been complaint about the potential and actual powers of the prime minister in the Westminster system. In Jamaica's two-month SOE, May 23 to July 23, it was criminal bodies of persons and the power of the executive that we needed protection from, first and foremost.

Strangely, it was the executive (the prime minister and minister of justice) that sought to act as judge and jury in deciding that Christopher Coke had constitutional rights that it should protect. It was the executive that, Dorothy Lightbourne said, had the prerogative over the courts to determine whether Coke should have been extradited or not. These positions emboldened Coke and his supporters in Tivoli Gardens to resist the law. The nine-month period of resis-tance could have been spent peacefully cooperating with extradition procedures and putting plans in place for Coke to go peacefully. The SOE would not have been necessary.

In other words, the action of a body of persons that threatens "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" (Section 26 (5B)) might not have occurred. The SOE only became necessary under the circumstances leading to and resulting from the intrusion on Tivoli. That intrusion made matters worse, ironically, because it caused deaths and further deprived citizens of supplies and services essential to life.

The Government justified the SOE on the grounds of ending the blockade of Tivoli and capturing Coke. Jamaicans went along with this. But the rules of the game then changed. The SOE was subsequently justified in the fight against crime. Even after Tivoli had been pacified and Coke caught, an extension was approved by Parliament. This was because the fight against crime had gained traction and political popularity.

Parliament agreed to continue to surrender our rights and freedoms to the executive and, by extension, to the police. Bert Samuels, writing against the extension of the SOE for a second month said, in the Sunday Gleaner, July 11:

"An example of the awesome power of the security forces, acting on the instructions of the minister of national security, can be demonstrated in the case of a citizen who is detained. In normal times, under Section 15 of the Constitution, that citizen can seek the intervention of a judge to enquire into his detention, leading to the possibility of being released from custody. Under a state of emergency, however, the judge becomes powerless to assist the citizen. It is a tribunal appointed to hear complaints to which he must appeal. This tribunal cannot compel the authorities to release him. It can only make the recommendation. We note with alarm that this tribunal was not in place to hear appeals during the entire period of the state of emergency declared by the governor general. There was no one in place, whosoever, to hear the voice of any of the detainees."

Failure of leadership

The eventual revocation of the SOE occurred because of a failure of executive leadership to rally its majority, account to Parliament, and win the confidence of civil society. It was a failure to muster the humility and will to lead by consensus, and with transparency and accountability.

The Government wanted 30 days of non-transparent and non-accountable powers under an extended SOE. The Opposition was willing to grant 15 days with Government's promise of evidence demonstrating the merit of any further extension thereafter. The Government said no, it would, in effect, not submit to transparency and accountability and, hence, the Constitution.

Jamaicans for Justice summed up, saying that the Government had provided neither evidential nor anecdotal support for its contention that the SOE was causing a reduction in crime. Besides, government can detain persons outside of the state of emergency. The Government was prepared to extend the SOE, almost without question. JFJ found it difficult to understand Government's unwillingness to compromise with the Opposition.

In 2003, arguing against a possible state of emergency then, Bruce Golding said, "The poor who live in our inner cities" are often detained, processed and released "because the police have no evidence on which to charge them. The police would simply detain and lock up. No need for any 'processing'! No need for any evidence! No need for any trial!" That, Mr. Executive, is why we need government to be accountable.

Robert Buddan lectures in the Department of Government, UWI, Mona. Email: Robert.Buddan@uwimona.edu.jm or columns@gleanerjm.com.