The Government’s repeated use of 14-day states of emergency (SOEs) will make it easier to convince a judge that it is being used as a “device” to circumvent the Jamaican Parliament, legal experts have asserted.
The legal opinion by the attorneys follows a decision by the parliamentary Opposition to file a constitutional challenge to the Government’s increasing reliance on SOEs to stem runaway murders.
Under Jamaica’s constitutional arrangements, an SOE can be imposed for an initial period of 14 days, but must be extended through a two-thirds majority vote by both Houses of Parliament.
Since November 15, Prime Minister Andrew Holness has announced the imposition of three SOEs blanketing at least seven parishes.
The first one ended after its extension was blocked in the Senate by the Opposition; while the second one, imposed in early December, expired days before Christmas without any attempt to extend it.
The third SOE, declared on December 28, remains in effect.
With the declaration of each SOE, the Holness administration is backing itself into a corner that will make it more difficult to successfully defend a constitutional challenge, warned Dr Lloyd Barnett, KC, a respected constitutional attorney.
Determined to bring the murder rate under control, Holness has already signalled that back-to-back SOEs are not off the table.
“We will use the SOEs when necessary. Criminals and criminal masterminds should take no comfort that the time for declaration is short. We are and we will continue to use all lawful powers within our means to control crime and to save lives,” Holness said when he announced the current SOE.
Jamaica recorded 1,481 murders between January and December 28 this year, an increase of 1.2 per cent year on year, according to the latest police statistics.
Holness also noted that the Government will continue to advance the legislative agenda, which will address crime.
“We continue to work on the Enhanced Security Measures Bill. We have already declared our intention to increase the penalty for murder. Already, in Parliament, there is a new Bail Act; other measures to come include changes to the Fingerprint Act and other legislative measures. We are serious about showing the criminals that we are in charge of this country and they are not at will to take lives,” the prime minister said.
“The court might give the Government some margin of appreciation over the first two or three, but if it continues beyond that, it becomes less likely that the Government will be successful because it will become clear that it’s a subterfuge,” Barnett said during a Sunday Gleaner interview on Friday.
For another attorney, three SOEs in nearly six weeks, including two in December, could be very persuasive evidence in court.
“When you have two in quick succession, you are going to hear that this is nothing more than a device to get around parliamentary approval and that is where the issue arises because you didn’t even bother to go to Parliament to get the extension,” said the attorney, who did not want to be named.
“I would certainly be prepared to argue that it is unconstitutional and make a judge have to decide.”
But those views were shot down by Justice Minister Delroy Chuck, who said he is “fairly sure” the lawyers are not correct.
Chuck, who is also a senior attorney, repeated the Government’s position that the SOEs “are saving lives” before saying “it would be inappropriate for any court to rule otherwise”.
“The Government acts on the basis of the Constitution. The Constitution allows it that a state of emergency can be called for 14 days. So I see no difficulty with it,” he told The Sunday Gleaner on Friday, noting that the Attorney General’s Department provided legal advice on the declarations of the SOEs.
His Opposition counterpart, Senator Donna Scott-Mottley, disclosed that a legal opinion sought from external lawyers concluded that the 14-day SOEs are “definitely unconstitutional”.
“Rather than seeking any injunctive relief, we should just go ahead and challenge outright the constitutionality of this approach that the prime minister has taken and to challenge the way in which the states of emergency have been used generally,” Scott-Mottley said.
“We know that although constitutionally it says on the advice of the commissioner of police and the chief of defence staff, we do know that these decisions are straight political decisions and I think that the prime minister would have gotten legal advice against the approach he has taken,” she added.
The Opposition declined to make the legal opinion public.
Scott-Mottley said the Opposition will meet with its legal team early this year to finalise the approach to the constitutional challenge.
Chuck was unfazed by the Opposition’s threat of legal action.
“Let them go ahead, the courts can decide,” he said.
A successful constitutional challenge by the parliamentary opposition will open the door for a flood of lawsuits against the State by people who were detained under the SOEs, the attorneys say.
Already, the Government has been ordered to pay $17.8 million to Roshaine Clarke, a St James man who was detained under an SOE in 2018 after the court declared that his fundamental rights and freedoms under the Constitution were violated and that he is entitled to damages.