The law lever in the PM's palm

Martin Henry , Contributor

It will be very easy to see if Prime Minister Andrew Holness means what he says about taking charge of creating "a new ethos of responsibility in all Jamaicans for Jamaica" [inaugural address]. So while others wrestle with the economy monster and election watch consumes media and analysts, I want to do a little work today on how the new ethos of responsibility can be built. We will know that the prime minister is not serious about the problem if he preaches about it and sets up a committee to study it while he moves on to fight the Economy and Politics.

As I pointed out in an earlier column, the levers for change available to the prime minister are not the political pulpit but law and public policy. As the newly enacted Charter of Fundamental Rights and Freedoms forcefully states, citizens not only have fundamental rights and freedoms but "all persons are under a responsibility to respect and uphold the rights of others ... ".

There is an abundance of existing laws designed to compel citizens to do this. But the laws are poorly enforced. Assistant Commissioner of Police (ACP) Les Green quite frankly told the country a few weeks ago that the few detectives available have to choose which cases they will investigate. Even the most serious crime against the person and their rights and freedoms, murder, has only about a 30 per cent clear-up rate.

'Clear-up' in police jargon means that a perpetrator has been identified and has been arrested, or had been killed before an arrest could be carried out. I am personally aware of several murder cases, including the murder of two policemen, which have gone cold from the start - no investigation towards clear-up. Other citizens, including the families of murdered people, will have their own stories of police neglect to tell.

It was, therefore, heartening to read a Gleaner report last Tuesday that the Jamaica Constabulary Force (JCF) "is planning to use video cameras to monitor its members as part of an attempt to ... clamp down on rowdy behaviour by persons attending political meetings". Where it is found that things happened in full view of law enforcers and nothing is done, disciplinary action will be taken, the point man for election policing, ACP Wray Palmer, told The Gleaner.

Furthermore, the JCF is now compiling a list of offences at political meetings and the related penalties under the law. The list is to be published with the warning that "this is the behaviour that we expect, and if you break the law, these are the consequences".

leading a reversal

Politics and the political parties have made distinguished contributions to lawlessness, slackness and irresponsibility and must help to lead the reverse.

The prime minister could begin with the Towns and Communities Act (TCA), which I have written about several times. The Towns and Communities Act dates back to horse-and-buggy days and is in need of substantial updates, particularly with respect to fines and to be more in line with the provisions of the Charter of Fundamental Rights and Freedoms. But the spirit and letter of the act is to prevent citizens from being a nuisance or obstacle to others and to take responsibility for their actions and their property.

The TCA is a quality-of-life law. And it is now well known from actions taken in several American cities like New York that when 'small' quality-of-life laws are rigorously enforced, not only does quality of life improve but hard crimes are driven down.

The TCA covers everything from "what not to be done in thoroughfares and highways" and vending, to behaviour in public places, management of waste and of animals, loitering, and noise. The Noise Abatement Act of 1997 replaced, and was intended to strengthen, Section 12 of the TCA. We know how that has gone. Although, in fairness, the police are doing much better now in some places for noise abatement.

Many other laws, like the Anti-litter Act have been piled up on the comprehensive TCA with just as much enforcement.

Section 4 of the TCA says: "It shall be lawful for any constable to take into custody, without warrant, any person who shall commit any of the offences hereinbefore mentioned within view of any such constable; and in like manner, when the offender is unknown, without warrant to take into custody any such offender who shall be charged by any other credible person with recently committing any of the said offences, though not committed within view of such constable, but within view of the person making such charge."

And Section 24 states: "Every person taken into custody in the daytime for offences under the provisions of this act without warrant shall be forthwith taken before some justice, or, if after the hour of six o'clock in the evening, shall be delivered into the custody of the sergeant or constable in charge of the nearest constabulary station, in order that such person may be secured until he can be brought before a justice to be dealt with according to law, or shall give bail for his appearance before a justice."

case backlog

Thousands of cases are languishing in the courts, inspiring diminished confidence in the justice system. Supreme Court Justice Lennox Campbell is, therefore, to be highly commended for throwing out, last week, an 11-year-old murder case which had had 38 trial dates without being heard and would have had to be postponed again because of the shortage of one juror.

Lawyers for both the defence and the prosecution were unhappy with the case being thrown out, but Justice Campbell stressed that the State must put a system in place where cases are tried promptly. He also remarked that Jamaica had a Constitution in which it was enshrined that accused persons must be tried within a reasonable time and he was not going to be part of any further delay.

The exasperated justice told the men to go home and stop reporting to the police. He said he was not going to set another date. "The Constitution means something and must mean something, and judges must recognise that," Justice Campbell told the court.

The fundamental function of the Supreme Court in our Constitution and in democracies around the world is to protect the rights and freedoms of citizens. These innocent-until-proven-guilty men, Byron Johnson, Solomon Johnson, Devon Hackett and Carlos Williams, of Morant Bay, St Thomas, accused of killing a policeman in Seaforth in 1999, have had their rights and freedoms trampled upon and their lives ruined by the very system designed to protect those rights and freedoms. Even though sent home by the judge, the sword of Damocles hangs over them, since the police can rearrest them for trial.

I am a strong advocate of victims' rights at a time when rights overwhelmingly mean the rights of accused persons. But can judges across the judiciary be somehow induced to throw out of their courts tens of thousands of the 400,000 backlog cases jamming up the system? Prime Minister Holness and his Government would be forced to strengthen the police for investigation and the judiciary for trials or be made to appear for what they would really be: backers of injustice and all the ugly things that injustice spawns.

The prime minister wants to remove zones of political exclusion (ZPE), a.k.a. garrisons. The requested walk with Portia, both of whom have ZPE constituencies, while nice for the exercise and the symbolism, will not remove garrisons. Absolutely, the first requirement is to reassert the rule of Jamaican law in these zones, which will require the pacification of the anti-state enforcer gangs by the security forces. Those liberated must be required to play by the rules and provided with opportunities to do so particularly income-generating activity so as to pay their way through the world like everyone else. Rehabilitative, value-for-money public works within the ZPEs themselves has to provide the first injection of income earned from effort.

The leader of the JLP made a big song and dance at the party's pre-election annual conference last Sunday about Dr Peter Phillips' statement that those who play by the rules get shafted. Phillips has quite correctly accused Mr Holness of distortion. Also subjected to distortion was the P.J. Patterson statement about politics being a fight for scarce benefits and spoils carried out by hostile tribes. Patterson was bemoaning what Jamaican politics had descended to, not defining or endorsing.

The bashed Phillips quote is one of the most important and dangerous observations ever made by a politician in this country. Phillips, in his rebuttal to the Holness distortion, via The Gleaner, provided the historical context of his Eastwood Park Gardens constituents being shafted with commercialisation of their residential community despite playing by the rules of the Town and Country Planning Act. He concluded, "The situation reflected impotence on the part of the state agencies to deal with the legitimate claims of citizens."

Holness had better deal with this critical problem of law and governance as prime minister, since the Government in which Phillips served as a powerful minister of many things over many years didn't, if he hopes to steer Jamaica in the direction of law and order, peace and prosperity - playing by the rules.

Martin Henry is a communication specialist. Email feedback to columns@gleanerjm.com and medhen@gmail.com.