Peter Espeut | Eternal vigilance of due process

At the beginning of the Charter of Fundamental Rights and Freedoms in the Constitution of Jamaica (Chapter 3) it states that “All persons in Jamaica are entitled to preserve for themselves and future generations the fundamental rights and freedoms to which they are entitled by virtue of their inherent dignity as persons and as citizens in a free and democratic society” (13.1.a). And then it goes on to define those rights.

Shortly thereafter it says that “Parliament shall pass no law and no organ of the State shall take any action which abrogates, abridges or infringes those rights” (13.2.b).

In days long past, monarchs and despots had absolute power to do what they wished as they governed their territory in their own interests. “A free and democratic society” is governed in the interests of the people – the demos – and the purpose of the national constitution of “a free and democratic society” is to limit the powers of the State to abrogate, abridge or infringe on the “Fundamental Rights and Freedoms” of its citizens. Jamaica is such a society.

Sometimes there is a throwback; democratically elected politicians behave despotically, and seek to govern in their own interests; or they seek to take “shortcuts” which deprive citizens of their “Fundamental Rights and Freedoms”. The strength of “a free and democratic society” is its ability to resist despots and corrupt politicians. The price of democracy is eternal vigilance.

These “Fundamental Rights and Freedoms” apply equally to all in “a free and democratic society”, and it should be the intentional task of every citizen – and of the state itself – to diligently guard these rights and freedoms jealously. Clearly, there are some Jamaicans who trample on the rights of others – especially the rights to life and property – and it is the job of the State to bring them to book. What many fail to realise is that a person suspected of a crime has the same “Fundamental Rights and Freedoms” as anyone else, including the presumption of innocence (16.5) and “the right to due process” (13.3.r). In fact, it is when someone is suspected of a crime that respect for their fundamental rights is really important. Persons are not to be called criminals until they have been found guilty or have pleaded guilty; until then they are suspects, with the same constitutional rights as you or me.

Persons or organisations who seek to protect the rights of persons accused of crimes – even heinous ones – are not defending “criminal rights”; these persons are not yet criminals. And even if they are criminals, they still have rights – the same rights as you or me, which need to be protected. Recent attacks on human rights advocates and organisations by Jamaican politicians are themselves attacks on human rights.

DUTY OF THE STATE

It is the duty of the State in “a free and democratic society” to put policies in place and to create a State apparatus to guarantee its citizens “the right to life, liberty and security of the person” (13.3.a). No State does this perfectly, but when a country consistently makes the top three most murderous nations in the world, it is cause for alarm, and one can genuinely speak of failure.

No Jamaican government since Independence has crafted an effective anti-crime plan; we clearly do not have one now. The fact that this present government believes that crime has reached emergency proportions, is an admission that whatever anti-crime plan may exist, is not working. This government feels constrained to ask citizens of Jamaica to temporarily give up some of their constitutionally-guaranteed “Fundamental Rights and Freedoms” – especially “freedom of movement” (13.3.f) and the right to “freedom of the person” (13.3.p) for the greater good of crime reduction.

Sensible people will easily see that declaring states of emergency (SOEs) cannot solve crimes, especially murder; restricting movement may temporarily reduce crime locally, but may shift it elsewhere. When the SOE is over, nothing would have changed, and crime will increase again.

An effective anti-crime plan must be able to detect crime, must lead to apprehension of the alleged perpetrator, and must allow law enforcement to build an airtight case which can be brought to court to gain a conviction. It is well accepted that a high probability of being caught is a better crime-reducer than harsh penalties that may never be imposed. In my opinion, SOEs do not qualify as part of an anti-crime plan – temporary local crime reduction maybe, but not an anti-crime plan.

CLAIMS

The Government claims that Jamaica’s high level of violent crime is being perpetrated by about 300 violence-producers. But they can’t catch them using ordinary policing methods. And even if they catch them, they can’t prepare an airtight case against them in short order. This is why they need a lengthy SOE to be able to detain them for long periods – without bail or charge being laid against them – providing time to build a case.

The evidence from previous SOEs and from the ZOSOs (some of which have been in place for over two years) is that the time just never seems to be enough, no matter how many times the SOE or ZOSO is renewed. What the Government seems to want is extended preventative detention without charge or trial for those they suspect but cannot prove a case against – symptoms of a Fascist state. They must see that this strategy is asking Jamaicans to give up the right to due process (13.3.r).

What really has me worried is the announced Enhanced Security Measures Act which like the new Bail Act is not – to the best of my knowledge – intended to be emergency powers, but perpetually in force. This may require Jamaicans to give up the right to due process on an ongoing basis. When this happens it would seem that Parliament will have passed a law which may threaten our claim to be “a free and democratic society”.

It seems that the Government is in panic mode, desperately seeking a way to reduce runaway violent crime by any means necessary. Permanently abrogating, abridging or infringing on the “Fundamental Rights and Freedoms” of Jamaican citizens in the process is unacceptable.

Peter Espeut is a sociologist and development scientist. Send feedback to columns@gleanerjm.com