Gordon Robinson | SOE different angle

Academic arguments about the legality of the Government’s desperate reaching for states of public emergency (SOEs) crutches seem to have run their course.

In any event, seemingly in furtherance of the purpose of government for the JLP by the JLP, the Government isn’t listening. Or if it is, the arguments are going in one ear and out the other probably because there’s little in between to stop traffic. Or maybe because the Government is so overwhelmed by the problem’s enormity and complexity it surrenders any concept of crime prevention or reduction to the higher ideal of winning elections.

Whatever the real reason, I blame the PNP. For four years, armed with its precious legal opinion, an imaginary copy of which it repeatedly waved at Jamaicans, the PNP has cried “unconstitutional” to support road-blocking the Government’s crime-fighting policy. Yet despite the declaration of more SOEs than Warmington gaffes, it hasn’t once troubled the Constitutional Court with a formal claim as it did with NIDS quicker than Johnny Cash could change harmonicas. Instead, the PNP preferred to cry “Wolf! Wolf!” for four years while playing political games with the Government’s crime-fighting strategies. Now that the wolf is actually here with the latest opening of a dangerous door to dictatorship, time may have passed for the PNP to put up (sue) or shut up.

That bit of political dentistry (“open wide”) was caused by the PNP allowing the thin edge of a crime-fighting SOE wedge to begin to force the door ajar. The latest SOE declaration, if allowed to stand without contest, circumvents the constitutional requirement of a two-thirds majority in both Houses of Parliament to extend an SOE. Even the political sophistry of adding St Ann to the prior declaration would’ve been impossible had the PNP put these SOEs to the test in January 2019. Or January 2020. Or January 2021. Or January 2022! Win or lose, there’d now be certainty. The Government would either know no further gang-fighting SOEs were permissible or the Opposition would know it must vote for extensions except it proves bad faith.

NEVER TOO LATE

Mark you, it’s never too late for a legal challenge based on constitutionality but it’s definitely too late for the PNP to be seen as sincere in commencing one. It’s definitely too late for such a lawsuit to be seen as anything but exposing PNP political hypocrisy.

So now we must concentrate on thrashing out conflicting constitutional concerns in a comprehensive constitutional reform exercise to be completed before 2099. Serial semantic screaming must stop. The latest epistle from the PNP reacting to the most recent SOEs is just plain tiresome.

What a lot of sound and fury signifying the square root of sweet Fanny Adams! The PNP has been serving this same whine with its cheese for years instead of growing a pair and taking legal action. Or maybe Chatty Chatty Campbell can mobilise street protests on an issue far more important than firing another minister. But of course he can’t. Why? Because the Government’s marketing advisers are street, lane, and village superior to the PNP’s tone-deaf blowhards so have convinced the population that SOEs “save lives”. Any PNP attempt at organised protest is likely to be even more pathetically attended than the sparse gatherings camped outside hospitals a few weeks ago.

What a set of Klueless Klutzes! In its endless diatribe, the PNP used “fascist” and “subvert” liberally. But if an Opposition sincerely believes that the Government is trying to subvert Jamaica’s Constitution (an allegation akin to treason), then its duty would be to take the strongest possible measures to thwart the Government. Is lecturing from a high horse likely to defeat subversion?

If this political farce wasn’t so catastrophic for Jamaica, it would be more hilarious than Mr Bean interviewing a young Elton John (look it up).

So it’s time to tackle the repeated use of “emergency powers” to address a dysfunctional society’s chronic failures from another angle. Governments seem congenitally unable to accept responsibility. So it’s up to us to develop contemporaneous strategies knowing that the depth of dysfunction was excavated by successive governments more focused on profligacy than prudence, popularity than performance, perfidy than policy, power than precision.

Step One must be restructuring the system of governance to introduce systemic prudence, performance, and accountability. Without this, we’ll be forever spitting in the face of gale-force winds blown by a political structure that allows too many lazy incompetents (or worse) to fulfil personal ambition through politics to the people’s detriment. I’ll never forget, as a junior associate in a law firm, being sent to the Supreme Court Registry on a Friday afternoon to search for “lost” files. In those halcyon days, before everybody fell under suspicion, lawyers were allowed entry for that purpose. A group of young lawyers from other practices were also there. We chatted as we worked. Naturally, the main topic was how we were overworked and underpaid. One young lawyer chirped: “I know where the money is”.

We swivelled faster than Linda Blair. “Where? How?” we asked in unison.

“Politics” was the snappy reply “and that’s where I’m going.”

EDUCATION

Step Two is education. Even if we successfully “detain” every Jamaican “violence producer” and magically disrupt their communications with followers permanently, how do we treat with the issue of succession? Leaders in every organisation were once followers. Ask Eddie, PJ, Portia, Bruce, Andrew, Peter , and Mark.

From Freddie McKay’s hit Sweet Yu Sour Yu:

He, who fights and runs,

that’s the man who has his gun.

He will fight again

so be on the run

We breed and nurture these followers in our schools where students are in charge and teachers obey students or suffer severe consequences. Our schools have become Petri dishes of indiscipline where students are no longer required to follow school rules they find uncomfortable, inconvenient, or inappropriate. Lessons are taught by rote; critical thinking is a foreign concept, manners and compassion outdated, and leadership the domain of the loudest carrying the deadliest weapon.

If we don’t reintroduce discipline into schools, starting at basic-school level, then even if we decapitate 300 “violence producers” from gangs today, we’ll face 600 tomorrow. If we don’t focus on Generation Next, SOE declarations will end up in history’s dustbin as a blinkered government’s desperate device designed to sacrifice a nation’s future on the altar of unimaginative populism.

Step Three is enforcement. Every time you ask a government minister what the plan is to improve anything, the response is legislation. We “solved” illegal dumping by passing the Anti-Litter Law. Don’t believe me? Ask the Speaker of the House. We “solved” indiscipline on roads with a brand-new Road Traffic Act. Don’t believe me? Ask recently “striking” taxi drivers. Heck! We “solved” gang warfare decades ago with the Suppression of Crime Act. Don’t believe me? Ask Reneto. Now, because SOEs are about to lose their shine, we’re promised a new Enhanced Security Measures Act (ESMA).

We keep passing the ball without scoring or accepting that we need to do more like a Spanish football team with ants in their pants. What’s the point of legislation without fully equipped, properly trained, and motivated law enforcement? Today, I won’t bother to detail likely constitutional difficulties with the ESMA because I’ve promised to take a different angle. But without Steps One, Two, and Three, MPs can have fun passing whatever laws excite them and create headlines, but Jamaica will only continue down a slippery slope to uthoritarian rule and suppression of dissent.

The PM was quoted by the Associated Press’ Dánica Coto (not The Gleaner) as saying: “As long as it’s needed, this Government will use states of public emergency.” According to Jermaine Young (expert on emergency powers and former professor at Howard University) in Global Americans (December 2, 2022), SOEs deliver only “marginal results” and have worrying consequences. He criticised Jamaican security apparatus as “rarely [providing] adequate statistics for one to be able to make a meaningful comparison at the local level pre-SOE versus post-SOE declaration,” and wrote, “Jamaica has a sordid reputation for abusing emergency powers”, including “arbitrary and unlawful mass extended detentions, extrajudicial killings, and internal renditions”.

So yes, in my opinion, using SOEs as crim- fighting tools is contrary to the spirit and intent of the Constitution. Circumventing the two-thirds majority requirements for extension by declaring back-to-back SOEs is dangerous. But there are even more perilous prospects looming if we continue allowing politicians to operate in a totalitarian governance system masquerading as democracy. It’s a recipe for governments to continue to dig foundations on the beach; act shocked and angry when they fill up with water before they can be used for construction; and then lock off everybody’s water supply, allegedly to stop the sea’s encroachment.

So wha’ sweet yu

it will soon sour yu!

Peace and Love.

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