‘FLOODGATES Now OPEN’

Government lawyers are planning to review the Emergency Powers Regulations governing the newly declared state of emergency (SOE) in St Catherine to ensure that they are within the confines of the Constitution.

This comes in the wake of the Full Court ruling yesterday that some of the regulations in the 2018 state of emergency in St James were in breach of the Constitution.

The ruling, which was decided by justices Chester Stamp, Anne-Marie Nembhard and Tara Carr, also found that the 2018 detention of St James taxi driver Roshaine Clarke during the SOE had violated a number of his constitutional rights, including his right to liberty and freedom, and awarded him approximately $18 million in damages.

Clarke, who was detained for 263 days without charge, had challenged his detention on the basis that his human rights were violated.

In suing the State, he had sought a number of declarations, including that his right to liberty, to be informed at the time of his detention of the reason for his arrest, and to be brought before a court as soon as is reasonably practicable were breached.

Clarke had argued that the conditions under which the extensions were obtained were unconstitutional and that the circumstances that may have warranted the SOE when it was declared on January 18, 2018 did not exist after the first extension.

Justice Stamp, in delivering the ruling, highlighted that the establishment of the public emergency has far-reaching implications for the rights and freedoms of persons living, working or entering the designated area.

He said that the court had found that that the Emergency Powers Regulations 22, 32, 30, 33 and 39 had breached the Charter of Fundamental Rights and Freedom of the Constitution.

‘The regulations were declared unconstitutional as they gave the authorities unduly unfettered power to abrogate the fundamental rights of a wide class of person in society without evidence establishing that they were reasonable justified for achieving the purpose of the state of emergency,” he said.

The aspects of the 2018 regulations which were found to be in the breach included the power to restrict access to any area, confinement to a place of residence, detention order and power of arrest or detention.

With respect to Clarke, the court also found that his right to be informed of the reason for his detention as soon as is reasonable practicable and his right to be brought forthwith or as soon as is reasonable practicable before an office of the court were violated.

When contacted yesterday to find out the Government’s reaction to the ruling and whether there would be an appeal, Attorney General Dr Derrick McKoy indicated that he could not share what his advice will be, but that his team will advise the ministry as to an appropriate course of action for it to decide.

But in the interim, he said, “We are going through the judgment, but it is safe to say some of the issues that the judgment raised were clearly already addressed, so we are looking to make sure that all of the regulations are consistent with the judgment.”

Added McKoy: “Quite apart from any advice that we may have about appeals, which is not something that we are going to discuss, we still have to make sure that the advice we give is to completely and consistently and permanently apply to uphold the judgment until it is changed or returned, but even if it never happens, we must ensure that the judgment is followed.”

He pointed out that the regulations were challenged in 2018 and new regulations implemented to ensure that SOEs do not infringe on the rights of citizens.

Nonetheless, he reiterated, “We are going through to make sure that the Government behaviour is consistent with the court ruling.”

But one of Clarke’s attorneys, Michael Hemmings, said he is not convinced that the current regulations have been satisfactorily amended to stand on legal ground and it is likely that the regulations for the current SOE in St Catherine may also be in violation of the Constitution.

“ ... From my observation since 2018, it has really been a regurgitation of the same regulations that were used each time the state of emergency had been called and if it is that the regulations are similar to those that were used previously and if the regulations are the same for the St Catherine SOE, based on the ruling of the court, that would be unconstitutional,” he said.

“I’m aware that minor changes were made on the regulations, but nothing that changed the substance of the regulations and the powers that were granted to the security forces, nothing that changed the unfettered power, the power to detain, freedom of movement and liberty,” said Hemmings, who is also president of the Cornwall Bar Association.

If this is so, he said the St Catherine SOE would need to be scrapped and suggested that the Government finds a new security strategy to deal with the high crime wave as the SOE was never intended to be used as a crime-fighting measure.

Michael Hylton, QC, who also represented Clarke, described the judgment as a “timely guidance” for the Government and the attorney general.

“They need to look at the judgment and be guided by it in looking at how the regulations can be amended,” he said.

“The court has explained in some detail why many of the provisions in this regulation are unconstitutional, and why they breached the rights not only of Mr Clarke but many other people who were detained in circumstances ... that were really appalling,” Hylton said.

“The court also granted substantial damages, which is not only important to the claimant, but is a statement as to the court’s view as to the importance of these rights and of treatment that was meted out to the citizen,” he added.

Meanwhile, the People’s National Party and Jamaicans for Justice (JFJ) welcomed the ruling, while appealing to the Government to find alternative crime-fighting measures.

JFJ Executive Director Mickel Jackson also noted that a similar ruling had been made in the case involving Everton Douglas and company in 2020.

The JFJ also took issue with the Government’s decision to announce the St Catherine SOE hours before yesterday’s ruling and especially after the Douglas ruling, describing the move as alarming.

In the meantime, Hemming said that since the ruling, a number of ex-detainees who were in custody with his client under the SOE have been contacting him, expressing their desire to take legal action against the State.

According to Hemmings, the “floodgates have been opened”.

tanesha.mundle@gleanerjm.com