Unwarranted extension of state of emergency

Bert Samuels, Contributor

"Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety."

These are the well-reasoned words of Benjamin Franklin, one of the great minds who drafted the American Constitution. In the Jamaican Constitution, the rights accorded to us as being essential to our liberty are recited in Chapter 3 bearing the title 'Fundamental Rights and Freedoms'.

So fundamental are these rights that the Constitution makes it impossible for them to be altered unless there is a mandatory six-month lapse between the introduction of the bill modifying them, and their final passage by a parliamentary two-thirds majority. But the protection does not end there. These changes are put on hold until, in a referendum by the Jamaican electorate, votes are cast for or against them becoming law.

There is yet a further safeguard protecting our rights in the Constitution. Where any law passed by our Parliament is found to be inconsistent with the Constitution, the courts may strike down that law and declare it void (Section 2).

The fact that these inalienable rights are so deeply protected in the Constitution is the background against which a state of emergency must be viewed. During this period of national emergency, many of our rights are not merely altered, but suspended. They no longer apply! As citizens, we must appreciate the far-reaching ramifications of this state of affairs, where we surrender our fundamental rights to the executive arm of government. This is a period during which the police are handed awesome powers of arrest, detention and the right to search, detain and/or occupy our property. Recall that outside of the period of public emergency, these rights could not be suspended, altered or modified without the holding of a referendum.

WAS THE EXTENSION WARRANTED?

There are three situations which warrant the declaration of a state of emergency. First, is where we are at war. Second, where democratic institutions are threatened by subversion. Third, and last, where the governor general is satisfied that we are threatened by a state of war with a foreign country, or natural disaster, or that the action of an internal group threatens "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" (Section 26 (5B)). I surmise that the governor general, being aware of the torching of police stations and the barricading of a community applied the last of the three considerations and, with justification, declared the limited state of emergency in the affected parishes of Kingston and St Andrew.

The governor general's declaration was for the maximum period that he was empowered to make - 30 days. The Parliament is the only body capable of extending a state of emergency. This extension must be based on the fact that the Parliament found that there remained in force, a state of affairs which amounted to a continuation of the threat to public safety. On June 22, Tivoli was no longer deprived of supplies and services essential to life. In fact, the security forces, after the May 23 incursion, brought that situation under control within days. All that was left for Parliament to consider, before it could continue to curtail our rights beyond the initial 30 days, is whether there was, in fact, continuing large-scale criminal activity, as to endanger public safety. In my view, the public has an unending interest in the reasons put forward by our representatives to justify the extension of the state of emergency.

Judge loses power

An example of the awesome power of the security forces, acting on the instructions of the minister of national security, can be demonstrated in the case of a citizen who is detained. In normal times, under Section 15 of the Constitution, that citizen can seek the intervention of a judge to enquire into his detention, leading to the possibility of being released from custody. Under a state of emergency, however, the judge becomes powerless to assist the citizen. It is a tribunal appointed to hear complaints to which he must appeal. This tribunal cannot compel the authorities to release him. It can only make the recommen-dation. But it gets worse, because, should he appeal today, he would not be able to renew his appeal prior to New Year's Eve! (Section 15 (6)). We note with alarm that this tribunal was not in place to hear appeals during the entire period of the state of emergency declared by the governor general. There was no one in place, whosoever, to hear the voice of any of the detainees.

I am of the view that, whereas for years we have had a very high crime rate with a ballooning murder rate, we did not qualify, on June 22, for the constitutional extension of the state of emergency. Our politicians, who seem clueless to deal with the long-standing murder rate, have unconstitutionally and desperately sought refuge in the far-reaching state of emergency. They have sacrificed our rights to divert our attention from their failure to guarantee us peace and good order.

In 1994, the Government amended the Constabulary Force Act, giving special powers to the police for detecting and preventing crime. Sections 50A to 50H, eight sections in all, gave the commissioner the power, where he was of the view that criminal activity was at such a scale that it endangered public safety, to employ the use of a cordon around the relevant locality. These curfews give the police wide powers of search and detention.

We should, therefore, heed the caution of Benjamin Franklin. Are we prepared to remain silent and allow Parliament to take away our liberty, to purchase temporary safety?

Bert S. Samuels is an attorney-at-law. Feedback may be sent to bert.samuels@gmail.com or letters@gleanerjm.com