Editorial | Adhere to constitutional norms

This newspaper, as are most Jamaicans, is scandalised over the recent spate of horrific murders, including the hacking to death of four homeless men on a single night and the shooting of a woman while she was at prayer, literally, in a church.

We are, however, concerned that the Government’s response to this latest manifestation of Jamaica’s crisis of violent crime seems to be a reflexive reach for states of public emergency, even if this means skirting last September’s Supreme Court ruling on the unconstitutionality of the Emergency Powers Act, as well as the regulatory arrangements on which the most recent states of emergency rested. Even if there were to be short-term gains from societal consent to the Government’s proposed action, it behoves us to be careful in acquiescing to any action that risks blurring the separation of powers between the executive and the judiciary, and weakening the rule of law and constitutional norms.

Indeed, there is a thin line between maintaining fundamental rights and freedoms and their loss by allowing their abridgement for the presumed advancement of security. In liberal democracies, rights and freedoms and security are not mutually exclusive concepts. They coexist. That, however, demands vigilance.

In this regard, our suggestion to the Government is to, within the contours of the Constitution and the law, aggressively mobilise Jamaicans to a consensus against crime, including making all of us believe we have a beneficial stake in the country. A good start would be the accelerated implementation of the National Consensus on Crime, signed last August between the political parties and private-sector and civil society groups. Apart from the hard security action of dismantling gangs and re-equipping and overhauling a constabulary in which most Jamaicans have little trust, a priority undertaking is supposed to be the regeneration of the island’s inner-city communities, with a focus on their swathes of at-risk young people.

Flexible with Constitutional Arrangement

Our disquiet, however, is over the authorities’ apparent willingness – on a presumption, perhaps, that the end justifies the means – to be flexible with adherence to constitutional arrangements. That was evidenced in last week’s call in Parliament by Prime Minister Andrew Holness for Opposition support for the declarations of states of emergency, which would allow for a return to the Government’s core crime-fighting strategy of more than two years, until last September’s court ruling.

Needled by the Opposition’s comments about the crime wave, Mr Holness retorted: “Help us to quarantine some of the criminals who are killing the people in western Kingston, which includes St Andrew South (the parliamentary constituency of Opposition leader Mark Golding). I am asking the leader of the Opposition to give support to measures that give emergency powers to the Government to control the crime that is happening.”

This week, in defending the Government’s security policy, and its investments in the national security infrastructure, the portfolio minister, Dr Horace Chang, in slightly more veiled fashion, pursued the same theme. He argued that the “special security measures”, usually a Government’s euphemism for states of emergency, would “allow us to create a holding position necessary for social transformation”.

Dr Chang also recalled that the consensus document allowed for “the use of the military, as permitted by law, in geographic areas where the homicide rate is above 32 per 100,000 (that is, two times the regional average), where the level of violence supersedes the capacity of the Jamaica Constabulary Force”. Triggering that clause, however, does not require the declaration of a state of public emergency. All it needs is a decision by the prime minister, who has the authority, under Section 9 (2) of the Defence Act, to give the chief of defence staff “such directions with respect to the operational use of the Jamaica Defence Force in Jamaica for the purpose of maintaining and securing public safety and public order”. What this arrangement does not do, though, is give soldiers the specific powers of constables. They have to operate in tandem with the police. Further, unlike in states of emergency, the security forces do not have enhanced power of search and long-term detention.

Emergency Powers Act

It is precisely the extent of those powers, and whether they exist without an inherent right of detained persons to apply to a court for bail, that was at the centre of the constitutional case in which Justice Bertram Morrison ruled against the Government. He held that the supposed authority of the security minister to sign detention orders under the contentious states of emergency regulations trespassed on the separation of powers and the authority of judges. Justice Morrison held, too, that the Emergency Powers Act was built on a section of the Constitution that no longer existed, without a saving clause to ensure its continuance.

The Government might have rewritten the law and regulations to bring the management of future states of emergency in line with the judge’s ruling. It, however, appealed the decision on both the merit of the law as well as technical grounds. That is acceptable. Notwithstanding, we are surprised that, as has been suggested by Prime Minister Holness and Dr Chang, the administration would wish to enforce the legislation, and declare states of emergency with the old regulatory arrangements, without knowing what the higher courts might decide.

Clearly, with more than 70 per cent of the parliamentary seats, the Government does not need the Opposition to sustain a state of emergency. That, however, would be a thumbing of the nose at the court. The administration should, instead, ask the Court of Appeal for an expedited hearing and adjudication of the case. In the meantime, the Government must pursue sustainable solutions to this crisis of crime.