Gordon Robinson | Fighting fire with fire only burns the house down

Let’s go through this one more time.

I promise to try to be quick. The Constitution provides, regarding a governor general’s declaration of a State of Public Emergency (SOE):

The Court shall be competent to enquire into and determine whether a [Declaration of SOE] purporting to have been made or passed [pursuant to the relevant Constitutional provision] was made or passed for any purpose specified [herein] or whether any measures taken pursuant thereto are reasonably justified for that purpose.”

So a court can answer two questions.

1. Was any constitutional pre-condition for an SOE fulfilled?

2. Was action taken pursuant to an SOE reasonably justified?

The Constitution does give authority for SOEs to be used to fight a specified type of crime, namely, if the GG is satisfied “that action has been taken or is immediately threatened by any person or body of persons of such a nature and 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.”

I don’t consider murder-rate spikes or escalating gang violence to be action taken by “any person or body of persons”, or likely to “endanger public safety”, or to threaten supply chains. I consider gang violence to be perpetrated by several bodies of persons mostly against each other and not the general public although it most definitely would tend to make the general public more fearful than ordinarily.

An example of the meaning of endangerment to “public safety” and supply chains is what is happening in Ukraine, not Jamaica’s endemic crime disorder.

But the good news for the conservative majority that enjoys lashing out with righteous indignation, shouting, “Hang ’em high!” (instead of carefully analysing the problem and devising long-term solutions), is I’m not or ever likely to be governor general. The Constitution only requires that the GG be “satisfied” (a very personal and subjective test) that such a threat exists for an SOE Declaration to be constitutional. Unless there’s zero evidence that national happenings could form the basis of a GG’s “satisfaction”, there’s not much a court can do no matter how much it may disagree with the GG.

So when Jamaican courts rule on these matters, they are almost always ruling on actions taken within SOEs and not on SOEs themselves. All of us are guilty of loose language when we say an SOE was declared unconstitutional by a court. In my opinion, recent SOEs (excluding the 2010 SOE) are unconstitutional, as constitutional pre-conditions don’t exist. But that’s just me.

The practical political problem facing Government is that recent SOEs are declared for one reason. It’s unconnected to recent hysterical rhetoric about “right to life” wrapped up in utter nonsensical assertions that this right is more important than the right to liberty. Government has declared SOEs in order to be able to detain suspected violent criminals without legal cause. The plan is to reduce murder rates (thus winning bragging rights and votes) by removing them from the streets. But if this is done without reasonable suspicion, if the detentions stretch on interminably without charge, and if they are used as fish in a catch-release-and-catch scheme, courts will declare those actions unconstitutional. Should detainees be (horror of horrors) actually innocent, the experience can also ruin their right to decent livelihoods thus a decent “life”.

CUT OFF ONE HEAD AND TWO TAKE ITS PLACE

Worse, regardless of possible court intervention, these indefinite detentions just don’t work. Persons lawfully detained after conviction and sentence are notoriously carrying out violent acts as puppeteers. Furthermore, Jamaica’s violence problem has been nurtured and allowed to grow over decades to the point that it resembles a Hydra. Cut off one head and two take its place.

So as an old lady once yelled: “Where’s the beef?”

Now, unsurprisingly, a gruesome, unhinged slaughter of a mother and her four young children in Clarendon allegedly by a family member is being used as support for another parliamentary flying of the death penalty kite. Lookie here! I don’t care what happens to murderers. Were I in a position to choose, I’d create a maximum security prison and keep the most vicious, unrepentant of them locked away for life without parole. I’d definitely not do any the favour of facilitating a return to God without first inflicting as much punishment as I could on this side of eternity.

But that’s just me. If YOU want to hang ’em high, go right ahead. Toss in a few wrongly convicted innocents if you like. Enjoy yourselves. With apologies to B.T. Express, do it ’til you’re satisfied. Scientific study establishes the only murderer or potential murderer you’ll deter with that barbarism is the hanged man. Hands up those of you who REALLY believe that if the Privy Council had permitted Jamaica to hang the vilest murderers, and, somehow, our bureaucracy was capable of implementation, the lunatic who slaughtered those Clarendon children would have been deterred and their lives saved. How many truly BELIEVE dog-hearted gang hit men give a flying fig about dying as a consequence of their murderous activities?

Ok, I’ve a flat piece of property in Bog Walk Gorge to sell both of you.

We took decades to get here thanks to political greed fuelling political corruption and breeding political gangs like Shower Posse, and Spanglers. Politics fostered and developed these gangs until gangs now infiltrate almost every area. They boast modern weaponry and sophisticated organisation surpassing anything security forces can muster. Their bosses are significant investors in Jamaica’s weakly regulated economy and major contributors to GDP growth.

Now YOU tell ME, how do SOEs terminate that egregious entanglement of politics, investment, and organised crime? The thinking is so inept (even Tuesday’s tabling of allegedly constitutionally improved Regulations was farcical) and vision so narrow it’d be hilarious if it wasn’t so tragic.

But not to worry! We’ll press on with populist locking up of alleged small-fry miscreants while Big Boss launders ill-gotten gains in plain sight, lives in upscale gated communities, and donates massively (and confidentially) to political parties. This corrupt combo will attract enough of us to polls for the next “election” to crown one party Jamaica’s Royal Family; its leader monarch; and its members, including street soldiers, official snout-in-trough dippers. Meanwhile, doomed by political history to live our lives in prisons of fear confined by burglar bars and tightly closed windows, we continue futile weeping, wailing, and gnashing of teeth.

I go to the movie

and I go downtown.

Somebody keep telling me

don’t hang around

It’s been a long

A long time coming

but I know a change gon’ come;

Oh, yes it will

Sam Cooke, one of popular music’s best vocalists, was constantly encouraged by his friend, Malcolm X, to stop singing sappy love songs and use his fame to more effectively contribute to the movement. But it wasn’t until racism broke through Sam’s celebrity bubble when he was turned away from a Louisiana whites-only motel that he was inspired to write and record the iconic A Change is Gonna Come. Between recording and release as a single, Sam was brutally murdered. The posthumous release (as side B to Shake) was a modest hit but eventually widely credited as one of the greatest, most influential songs ever recorded.

UNCOMFORTABLE TRUTHS

I’ve warned you before. I’ll do it again and again until God calls me home. We. Won’t. Solve. High. Murder. Rates. With. SOEs! Fighting fire with fire only burns the house down. Stooping to murderers’ level gives them what they want. They LOVE the fame and glory of shoot-outs, living fast, and dying young. If you don’t believe me, stop railing against popular music lyrics and LISTEN to them. They are uncomfortable truths about society. Believe them.

I’ve warned you before. I’ll do it again and again until God calls me home. Unless we radically reconstruct Jamaican society, we’ll be declaring SOEs forever; crying crocodile tears in Parliament; and desperately trying to buy votes with tough talk and uncivilised crime-fighting methods. IT’S. BEEN. TRIED. It doesn’t work.

Radical reconstruction of society (or at least visible efforts to begin) will permit Governments to use whatever short-term strategies float their boats. Radical reconstruction means radical education transformation to highly paid teachers with master’s degrees and life lessons in every curriculum; radical governance restructuring to include real separation of powers between Executive and Legislature and citizens’ input in selection of every senior member of the Executive directly or through elected representatives; and radical reform of a technology-driven JCF with tertiary degree entry requirements, significantly improved pay and perks, and zero tolerance for corrupt cops.

I could go on and on. The full has never been told.

Peace and love!

Gordon Robinson is an attorney-at-law. Email feedback to columns@gleanerjm.com.