Extraordinary measures for extraordinary times

The following is an extract from a presentation made by Wayne Chen, president of the Jamaica Employers' Federation, to the Rotary Club of St Andrew on July 27.

The British philosopher John Stuart Mill famously asserted, "The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others."

The most fundamental reason for the existence of government is the creation and preservation of order and human life.

In ancient times, it was the rule of the king, the emperor or the warlord but today, modern democratic societies are organised around the rule of law.

We the citizens by consensus surrender a measure of our individual rights and freedoms and agree to be bound by a system of rules that bind every citizen, and most important, bind those whom we elect to lead.

Civilised democracy

Any failure to adhere to these rules, to apply them unfairly or inconsistently, or to break the consensus, reduces our claim to being a modern civilised democracy.

One characteristic of a failed state is the loss of physical control over its territory or, according to the German philosopher Max Weber, the loss of "its sole right to use legitimate force within its borders".

When this sole right is diminished by the activities of warlords (or dons), paramilitary groups (or gangs), or terrorism (or uncontrolled homicide), the very existence of the state comes under threat.

I believe that the limited state of emergency and the other harsh legal measures are necessary evils needed to turn back this threat. I do not underestimate the seriousness of their intrusions into the rights of ordinary Jamaicans and the curtailment of our freedoms but we need to measure their success in the number of lives saved. If we were to cut the murder rate that obtained up to May, 2010, by only two per day for the rest of this year, over 300 Jamaican lives would  have been saved

We have been here before; the Suppression of Crimes Act was enacted in 1974 and repealed 20 years later, in 1993. It allowed for searches without warrant and the detention of persons "reasonably suspected" of having committed a crime.

There are many policemen who are convinced that their loss of these powers after the repeal of the Act was a direct contributor to the escalation in crime that ensued. After the catastrophic year of 1980 when murders hit 889, the rest of the 1980s saw murders stabilise at just over 400 per annum. The first three years of the 1990s saw the number grow from 542 to 653, and to 690 immediately after the Act was repealed. Three years later, in 1997 we passed the 1,000 mark for the first time and for this decade we will end up averaging around 1,400 Jamaicans murdered each year.

In 1989 Jamaica's annual per capita murder rate was 2.1 times the United States' and had, with the exception of 1980, been stable at this ratio for 13 years. In 2009, twenty years later, Jamaica's murder rate is now 11.5 times higher than the United States.

Put another way, just based on the differences in murder rates between the two decades of the 1980s and 2000s, about 10,000 more Jamaicans will have been murdered in this decade.

High per capita murder rate

Interestingly, Human Rights Watch has reported that 1,633 civilians were killed in Afghanistan (with a population of 28 million) in 2007 as a direct result of the war. In that same year, 1,574 Jamaicans were murdered, a rate 10 times higher per capita than that of Afghanistan, a war-torn country.

The estimates of civilians killed in the war in Afghanistan between 2001 and 2009 vary widely with the lowest estimate at 13, 372, and the highest at 32,969. Over the same period 12,499 Jamaicans were murdered.

In other words, if we were even to use the highest estimate of civilians killed in the war in Afghanistan, Jamaicans have been murdered at a rate over three times higher over the past decade. Yet we are not officially at war.

Our right to life is the highest and most cherished, and by that statistic alone we have failed as a nation to end our undeclared war, and save the lives of our citizens.

Sixteen years ago, in 1994, I warned of the "coming anarchy". I borrowed the theme from an essay written by the American journalist, Robert D. Kaplan, in which he warned that levels of homicide and violent crime could rise in countries not officially at war, to levels that would undermine the very existence of the state.

It is clear to me that the police by and large know who the habitual criminals are and, if given greater powers, can suppress violent crime for the short and medium term.

It is clear to me that the criminal gangs have been proliferating, improving their levels of organisation, upgrading their weaponry, increasing their levels of co-operation and becoming more brazen and ruthless.

It is abundantly clear to me that our society urgently needs to break this trend.

In times of war, societies suspend the normal rules of operation, and Jamaica is no exception. We cannot surrender meekly in the face of this onslaught. We need to use tough measures to break up these networks, curb the lawlessness and remove this danger to our democratic society.

However, we should be ever mindful that the risk of mistakes and abuse is far too high for extraordinary police powers to become the norm.

We may be going to war but we must be mindful of warning that "the first casualty when war comes is truth".

So, while we enact the tough measures for the short term, we must ensure that the oversight mechanisms, including a free press, are robust and watchful. Any abuses of power by the security forces will undermine the effectiveness of the programme.

While we give up our hard-fought rights and freedoms in the short term, we must never forget the words of Lord Acton: " Liberty is not a means to a higher political end. It is itself the highest political end".

Restore rights and liberties

So, our goal should be to restore our rights and liberties in the shortest possible time, once the war has been won. We need to use extreme measures in the short term to recalibrate the society, but they must be for a limited time only.

Our failure over the years to sustain the suppression of violent crime has been less about the failure of the security forces and more about the general failure of government and civil society to do all the things that are also essential. The suppression of violent crime is necessary to create the space, but not sufficient to sustain the peace.

We can buy ourselves some short-term relief by giving up our individual rights, but we would have squandered our sacrifice if we do not improve our institutions of law enforcement and justice, and implement the social and economic programmes to make the crime-reduction measures sustainable.

Much has been said elsewhere on these issues, so I will only focus on two areas that do not get enough attention: our prisons and squatter communities.

Our ancient, overcrowded prisons have become universities of crime, yet we have a very low incarceration rate, have built no new prisons for decades and have none planned for the near future.

Incarceration rates

The United States experience demonstrates that one of the key components in reducing violent crime is to increase incarceration rates. Put simply, taking the people with the propensity to commit crime off the street reduces the number of crimes committed.

In 2008, the United States had an incarceration rate of 760 per 100,000, compared to Jamaica's 174. We have a much higher rate of violent crime, yet we lock up criminals at less than a quarter of their rate. In fact, Jamaica has the lowest incarceration rate in the English-speaking Caribbean, although we have the highest rates of violent crime.

The concern over the years has been the high cost of prison construction and, even more so, the cost of maintaining prisoners, but there is a way to overcome this challenge.

We need to examine, among others, the South African experience, where the private sector has built and operated their new prisons.

Different models of prison privatisation have been tried in several countries with varying degrees of success, but, where it has been properly done, it has lowered the cost, raised the standards, precluded the need to find money up-front and eased the country's medium- and long-term fiscal burden.

Too many Jamaicans live in squatter communities that have become havens for crime and criminals.

According to the minister of housing, about a million Jamaicans live in 700 squatter communities across the island. Furthermore, it is well known that in communities where householders have 'captured' the land and have no title, they have no control over their neighbours and no foundation on which to build a strong, law-abiding community.

The vacuum created by the loss of state control is often filled by 'area leaders' and criminal gangs, with the inevitable result of more criminal garrisons.

V\iolence in squatter areas

It is not coincidental that the explosion in murder and violent crime in St James happened in parallel with the mushrooming of large squatter communities around Montego Bay. And it is not a coincidence that the parishes with the lowest rates of violent crime also have the lowest incidence of squatting. Yet, we do not have strong anti-squatting laws that would empower the police to act expeditiously and we have not found the political will to move in that direction.

There is a great need for a cauterisation of squatting, the upgrading and formalisation of existing communities where environmental and building standards can be met, and an urgent programme, including a transparent, fair, and accountable system of land reform, to make affordable housing solutions accessible to all.

Overall, our laws and institutions need to be comprehensively reformed and updated to meet the challenges of our current reality, and also to foster the creation of a modern democratic society.

We have become addicted to easy fixes and every veranda and rum bar is full of experts with panaceas. There is no easy solution, which is not the same as saying that we don't know what the solutions are.

We know what we need to do, but have, until recently, been unwilling to make the sacrifices necessary to implement them.

The challenges were a long time in the making and the solutions will not take effect overnight.

Any short-term reallocation of scarce resources while we increase the economic pie will necessarily mean that some other vital areas of national life will suffer.

Yet, when we have been backed into a corner, we have found the will and made the necessary sacrifices. Our recent history has demonstrated that we respond when there is a crisis.

Much has been said about the political will that is necessary, but we must not make the mistake that political will is only about the determination and doggedness of our political leaders. It is even more about the determination and doggedness of civil society.

For much of our life as an independent nation, there has been a deep desire in civil society for some fundamental changes, but a basic challenge has been that we have never been able to mobilise a consensus on the how and the what.

The extension and broadening of the state of emergency and the enactment of the new crime-fighting legislation have deep and widespread public support.

No equivocation

The liberation of garrisons and disruption of organised criminal gangs have begun and we cannot afford to equivocate now.

The many initiatives required to sustain the fight against crime will require billions of dollars and the reaction has always been that we don't have the money, that it "takes cash to care".

Yet, the high rates of violent crime have destroyed billions in national wealth.

The World Bank has estimated that Jamaica would add 5.4 per cent per annum to its annual GDP if it could bring its crime rates down to the levels of Costa Rica.

That would mean bringing our murder rate down to the 1975 level of 266 per annum. However, if we were even to return to the average level that we saw in the 1980s, we would add three per cent (or another J$31 billion) per annum to our GDP. If we had kept our crime at 1975 levels for the past 25 years, our economy today would be three times larger.

We have become like the proverbial frog which, when placed in hot water, will immediately hop out to save itself, but when placed in cold water that is gradually heated to boiling, will remain and be boiled to death. The amphibian's fatal flaw is that its nervous system is not programmed to react to the gradual rise in heat.

We cannot sit in the rising heat and allow ourselves to be boiled. If the security forces need extraordinary powers for the short term, then we should let them have them, while carefully monitoring against abuse. Their actions in recent weeks have been highly successful and the tangible gains to our society have earned them the right to be heard.

In the end, however, we in civil society owe it to ourselves to use our recent experiences to push for the other components of a programme to bring violent crime back to levels that would allow us to declare peace and rejoin the ranks of modern civilised societies.