Former Police Fed chair gets green light to challenge constitutionality of JCF gag orders

The Supreme Court has cleared the way for Corporal Rohan James, the former chairman of the Jamaica Police Federation, to challenge rules of the police force that he claims unconstitutionally restrict officers’ rights to freedom of expression.

On Thursday, Justice Tricia Hutchinson Shelly granted James permission to amend his case to include broad constitutional claims against several force orders of the Jamaica Constabulary Force (JCF) and a section of the police law, which he argues violates the Charter of Fundamental Rights and Freedoms.

The specific statute is Section 70(2) of the Constabulary Force Act, which bars members from publishing or communicating any matter related to their duties with the Police Federation without the consent of the police commissioner. The federation represents rank-and-file members of the force.

James is contesting his interdiction and disciplinary charges stemming from statements he made at the July 15, 2023 funeral of a deceased colleague, which were critical of the JCF’s leadership. The JCF contended that his comments breached force orders and brought the force into disrepute.

In his original claim, James alleged that the disciplinary action against him violated his constitutional rights to freedom of expression, thought, conscience, and belief. Deputy Commissioner of Police Andrew Lewis and Major General [ret’d) Antony Anderson, who was the police chief at the time James was sanctioned, are the respondents.

Thursday’s ruling allows James not only to plead additional breaches under Jamaica’s Charter of Fundamental Rights and Freedoms but also to add the Attorney General as a party to the case, given the challenge to the Constabulary Force Act.

NO NEW CAUSE FOR ACTION

Hutchinson Shelly ruled that the proposed amendments, although filed late, were grounded in the same factual circumstances and did not raise new causes of action.

“This court finds that it is meritorious as the applicant did not sit on his rights but sought to be guided by counsel through the several steps which were taken in this matter,” she concluded.

In her judgment, Hutchinson Shelly noted that lead attorney Neco Pagon “vigorously opposed” James’ application, which was heard on April 30.

Pagon argued that the application should have been brought under Part 56 of the Civil Procedure Rules, which governs judicial review matters, and that there was no provision for such amendments after the first hearing. He also said the reason given for filing late – just a day before the November 6, 2024, trial date – was not sufficient.

Pagon also contended James’s new amendments have no prospect of success based on the provisions of sections 3 of the CFA, which, among other things give the commissioner operational command over the force, and section 26, which allows the minister to frame rules for the force.

The Attorney General’s Chambers also opposed the application.

James is represented by attorney Lemar Neale. Neale said the amendments did not introduce any new facts but only sought to specify additional remedies sought from the court, given James’ interdiction and the cut in salary.

He cited authorities, one of which said, “amendments should be allowed so that the real dispute between the parties can be adjudicated upon, provided that any prejudice ... can be compensated for in costs.”

In rejecting Pagon’s argument that James’ change of legal representation could not justify the late amendments, Justice Shelly pointed to the timeline of events, noting that the new application was filed within two weeks of James’ consultation with the new lawyer.

“He did not wait until the trial date to seek new counsel but did so shortly after his application for mandamus was refused,” the judge said. “It is also clear that it was in the course of consultation leading up to the trial that these observations (new pleadings) were noted and acted on. It is for these reasons that the court is unable to agree with Pagon that no good reason has been provided.”

The judge also ruled that at this stage, the court found that the proposed amendments present a factually arguable case with a reasonable prospect of success.

The policeman is seeking sweeping declarations that multiple JCF Force Orders – including Orders #3289, #3495, and #3561 – and Section 70(2) of the Constabulary Force Act are unconstitutional. He contends they improperly restrict his freedom to express opinions about the Force, even outside formal duties.

Hutchinson Shelly reasoned that while the respondents will have to spend additional time responding to the amended claim, they are not being asked to address a new cause of action, and their affidavit already tackles many of the issues raised. Despite the delay caused by the vacated trial date, the judge concluded that the amendments should be allowed as they will help the court “in determining the real questions in controversy between the parties.”

One of the more controversial declarations James seeks is that the force orders and statutory provisions under which he was charged “have breached, are breaching and/or are likely to breach” his Charter rights and are therefore “null and void and of no legal effect”.

“It follows that if the court finds that the provisions are in fact unconstitutional, this would certainly be dispositive of the matter between the parties, as actions taken pursuant to unconstitutional provisions cannot stand,” wrote Hutchinson Shelly.

The case, originally filed in July 2023, has experienced several procedural twists, including an earlier stay of interdiction that was overturned on appeal.

James is also seeking constitutional or vindicatory damages and an injunction to restrain further disciplinary proceedings.

The matter is set for hearing before a Full Court on January 11 and 12, 2027, with a pre-trial review scheduled for January 12, 2026.

The court also granted the respondents leave to appeal the orders.

editorial@gleanerjm.com