PNP acted responsibly

David Coore, Contributor

At the risk of being classified as belonging to what Don Robotham has called "lumpen", I write to express my congratulations to Ian Boyne for his article in the Sunday Gleaner of July 25 titled 'PNP is not the problem'.

In this article he says two important things. First, he has brought a refreshing balance and sanity to the discussion on the failure of Parliament to extend the state of emergency which was declared in May this year and then extended for one month with the full support of all the members of Parliament. Second, he has publicly and courageously denounced the behaviour of his colleague journalists for their vicious attacks on the People's National Party (PNP) particularly its leaders Portia Simpson Miller and Peter Bunting. He has rightly described these attacks as "grossly unfair, unbalanced, and irresponsible".

This characterisation is fully justified and I am optimistic enough to hope that some of these commentators at any rate will be induced to at least review in their own minds the unfairness of which they have been guilty. I would, however, like to take the opportunity to make a more fundamental criticism of these attacks. The fact is that they demonstrate a gross ignorance of what is provided in the constitution in respect of a state of emergency and an even more inexcusable failure to appreciate the role and responsibilities of members of Parliament in general and those who sit on the Opposition benches in particular.

Extension

Let us look first at the relevant provisions of the constitution. First of all, the impression has been conveyed by most of the commentators that the support of the Opposition was necessary in order for the state of emergency to be extended. This impression is misleading. Although a state of emergency has the effect of suspending the operation of some important Sections of the Constitutional Bill of Rights, neither its declaration nor its extension requires passage by two-thirds majority of both Houses of Parliament as is the case with the amendment of entrenched Clauses of the Constitution. All that is required for extension of a state of emergency is an affirmative vote by at least 31 members of the House of Representatives - that is to say, a simple majority of the total membership of the House.

Since the Government by definition has a majority of the members of the House of representatives, otherwise it couldn't be the Government, it is in a position to pass an extension of the state of emergency without the votes of any member of the Opposition, provided the elected members of the House on the Government side are in their seats when the vote is taken. On this occasion, for some reason or reasons unknown, the Government was unable to get all its members to attend for the purpose of passing this resolution. This was certainly not the fault of nor due to the action of the Opposition.

Relevant provision

Turning now to the constitutional requirements for a state of emergency to be declared in the first instance, and then extended if necessary from time to time, these are to be found in section 26 subsections (4),(5),(6) and (7). The relevant provision for the declaration of the state of emergency in May this year is that the governor general must be satisfied - "that action has been taken or is immediately threatened by any person or body of persons of such a nature and 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".

As we all know, the circumstances that justified this state of emergency in May was the insurrection in Tivoli Gardens marked by the erection of barricades preventing ingress to or egress from the community and supported by armed individuals within the community who were prepared to, and did in fact, use their weapons against the security forces who were seeking to enter the area for the purpose of executing a legal warrant of arrest on Christopher Coke. The security forces succeeded eventually in taking control of the affected area with the consequence of substantial loss of life and damage to property but did not find Christopher Coke therein and, therefore, had to continue the search for him elsewhere.

Up to the time of the first extension, this individual had not been captured and, therefore, there was justification for the extension of the state of emergency in the relevant areas of Kingston, St Andrew and St Catherine. Within that period of the first extension, Coke was arrested and extradited and Tivoli Gardens completely controlled and pacified so as to regain its position as a normal part of the Jamaican nation.

As a result of this success by the security forces, by the time the issue of the second extension came around, the circumstances that justified the original declaration and its extension no longer existed. The provision related to an extension of the state of emergency is to be found in subsection (6) of section 26, and reads as follows - "a proclamation made by the governor general for the purposes of and in accordance with this section. May be extended from time by a resolution passed in like manner as is prescribed in paragraph (a) of this subsection for further period not exceeding, in respect of each such extension, a period of twelve months".

It is quite clear that such an extension must be justified by the same purpose which justifies the original declaration. It cannot be justified by some other purpose even if that other purpose would in itself have justified an original declaration. Still less can an extension be justified for the purpose of dealing with a general crime situation, however serious that may be, that exists independently of the particular event that occasioned the original declaration. As I understand it, the PNP, both prior to and in the House itself, made it clear that for the above reasons they could not support this second extension in the absence of information that the original circumstances supporting the initial declaration still existed in some significant way. Since such information was not forthcoming, the PNP, therefore, made it clear that they could not support the request for extension as it stood.

It should be clearly understood that this is not a pedantic or purely technical objection. If an extension were to be passed that was not in keeping with the constitutional requirements, there is the strong possibility that an action could be brought in court to set aside the extension with the result that persons detained by the security forces within this extended period would have to be set free and they could sue for damages for false imprisonment. This means that if a second extension had been granted as requested, the security forces could be misled into acting illegally with the above stated consequences.

Highly undesirable

So far from an illegal extension assisting the security forces, it would become a trap leading them to commit illegal acts. It is obvious that this would be a highly undesirable state of affairs and the Parliament should clearly not run the risk of putting itself and the security forces in such a position.

This leads us now to a careful consideration of the role and responsibilities of a member of Parliament. Clearly, members of Parliament have an obligation to support and uphold the provisions of the constitution and not to act knowingly and deliberately in an unconstitutional manner. Clearly, therefore, the Opposition members were under a duty to ventilate these serious concerns and to insist that Parliament be fully informed of facts that could possibly justify a conclusion that an extension of the original declaration was justified, not for the purpose of dealing with crime generally or for any psychological effect that any such extension might have, but in order to deal with some continuation of the circumstances that led to the original declaration.

In taking this position, the Opposition were acting in a responsible way and in fulfilment of their role and duty as members of Parliament. To abuse them as so many commentators have done because they acted responsibly and in pursuance of their duty as members of Parliament is, as Mr Boyne rightly says, both grossly unfair and irresponsible.

Finally, when the Opposition in a genuine effort to give the Government an opportunity to be in a position to either produce the information that would satisfy the constitutional requirements or any rate allow them to ensure that they had the members present to pass the resolution, the Opposition proposed that they would, without conceding their basic objection, agree to support a two-week extension, they are accused of wanting "to have their cake and eat it". This is, to say the least, a grotesque characterisation of a genuine effort at a reasonable and workable compromise.

It now appears that the Government may have rejected this compromise because they had received legal advice that is clearly wrong, to the effect that the extension could not be for a period shorter than one month. This is manifest nonsense as is made clear from the wording of the relevant subsection quoted above.

Finally, I would like to suggest that while the media have a right and a duty to criticise politicians when they transgress, there is also a duty to ensure that such criticisms are based on a foundation of fact and law and not on an assumption that every act done by a political figure has its origin in some convoluted Machiavellian scheme. Sometimes the simple, straightforward explanation is the truth and not everything that politicians do in and out of Parliament is motivated by sinister intentions.

David Coore is a senior member of the People's National Party and one of the framers of the Jamaican Constitution.