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States of Emergency, ZOZOs and the fundamental rights of individuals

BY DR LLOYD BARNETT

Sunday, January 20, 2019

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JAMAICA has been grappling with a high incidence of violent crimes, especially murder and rape.

In an attempt to solve the problems, Government with the support of the Opposition established States of Emergency and Zones of Special Operations in different parts of the country. The refusal of the Opposition to give the support necessary for the extension of SOEs has led to a national debate, which has been conducted to a great extent without regard for the constitutional principles by which we are bound or the rational analysis which the situation demands. In this article an attempt is made to explain and clarify the basic principles and some of the rational considerations.

The Constitution is our supreme law. As in many democratic countries Jamaica's Constitution provides special constitutional protection for the fundamental rights and freedoms of individuals. These rights are declared in the Universal Declaration of Human Rights and other international instruments, in recognition of the inherent dignity of every human being. While our Charter of Rights guarantees these rights, it also recognises that in exceptional situations of public emergency it may be necessary to suspend or restrict these rights.

Emergency is a sudden occurrence or unforeseen situation requiring immediate action or drastic remedy. In this respect, declarations of states of emergency are authorised by the Charter of Rights to deal with extraordinary circumstances, defined as –

(1) “the imminence of state of war”;

(2) “action taken “immediately or threatened” on such a scale as to be likely to endanger the public safety; or

(3) natural disasters and other calamities.

The Charter of Rights which came into effect in 2011 guarantees the individual's “right to protection from torture, or inhuman or degrading punishment or other treatment as provided in subsections (6) and (7)”. s. 13(o). It also guarantees other rights, such as the privacy of the home and family life, protection from search of property (s. 13(j)). These rights are not suspended, even during a state of public emergency. During the state of public emergency only three of the fundamental rights guaranteed by the Charter may be suspended or qualified. These are freedom of movement, freedom of the person, and due process — that is the right on arrest to be charged and brought before a court.

A state of emergency can only be declared for an initial period of 14 days and for any extended period not exceeding three months on each occasion, as may be approved by a two-thirds majority of each of the two Houses of Parliament. Each extension has to be justified on the basis of an existing or present danger and requires the approval of a two-thirds majority of all the members of each House of Parliament. Most importantly, the Court can review whether any measures taken are reasonably justified for a legitimate purpose.

Clearly an ongoing high incidence of crime does not itself satisfy this strict constitutional criterion. It is therefore very important that the imposition as well as each renewal of a SOE should be preceded by a careful examination of the facts and circumstances.

The Emergency Powers Act, passed at the commencement of World War II during a period of Crown colony government, states that during a period of public emergency the Governor-General may make regulations which he considers necessary for:

i. Detention and deportation of persons;

ii. The taking possession or control of property;

iii. The entering and search of premises;

and to make disobedience of these regulations a summary criminal offence.

Using this wartime statute, the Government made the Emergency Powers Regulations in 2010. It provides that the Governor-General, the Minister of National Security, the Chief of Defence Staff of the JDF and the Commissioner of Police may, if they consider it necessary, block roads, set up cordons, enter private property to carry out work, requisition any ship or article, require the provision of information, prohibit assemblies, establish curfews requiring persons to remain indoors for such duration as they think fit, restrict access to particular areas, prohibit wearing of uniforms or emblems, search premises and confiscate literature, stop and search vehicles, confine a person to his place of residence, and order the closure of places of public resort and entertainment. These provisions are clearly in conflict with the fundamental rights guarantees and are not authorised by the emergency provisions of the Charter.

In 2017, Parliament passed the Law Reform (Zones of Special Operations) (Special Security and Community Development Measures) Act. It empowers the Prime Minister, acting on the advice of the National Security Council, to declare an area to be a zone of special operations and within such zones to:–

Empower members of the security forces to search a person, vehicle or place without a warrant if they reasonably suspect that an offence has been, or is being, or is about to be committed, establish a cordon and declare a curfew in the zone. Curfews may be declared for up to 72 hours and cordons for 24 hours.

These provisions are in clear conflict with the fundamental rights guarantees of the Charter of Rights and are not authorised by the constitution.

Apart from a state of emergency, no fundamental right can be suspended by Parliament or executive order and only the three identified can be so treated. Any provision which authorises the search of property, invasion of the privacy of the home, or abridgement of the right to humane treatment is therefore contrary to the Constitution. It is clear that the Charter does not intend that any fundamental right should be suspended other than in accordance with the very stringent provisions of the public emergency section of the Charter.

The state of violent criminal activity in Jamaica has been such as to indicate that stringent measures are justified. There has, in fact, been a decline in murders in the emergency and ZOSO neighbourhoods. The fundamental human right to life has therefore been served by these extraordinary measures. It is, however, quite clear that the Charter mandates that these extraordinary measures should be of limited duration and be continued for no longer than it is necessary. Secondly, the elaborate emergency provisions established by the charter implicitly exclude any competing emergency measures such as ZOSOs, which do not conform with the constitutional standards and leave it to the Executive to impose stringent restrictions on the liberties of citizens.

One value of the SOE is the suddenness of its impact — disruption of criminal organisation. One danger of its prolongation is to make the criminal elements too accustomed to it. Familiarity breeds contempt.

In cases of the renewals of SOEs, at least there should be detailed statements as to the scope and imminence of the threat, the number of persons involved, the strategy for the short- medium- as well as long-term control or suppression of the threat or problem. Where there is a proposal for extension, the duration of any such extension should be preceded by the publication of relevant data, as well as public and parliamentary debate.

Two of the most important factors in the prevention of crime are the presence and responsiveness of the security forces. Where the security forces are seen or known to be present or it is known that they will be present, immediately upon being called, there is a great disincentive to criminal actions. So long as Jamaica has a high incidence of crime there must be —

(1) adequate numbers of members of the security force;

(2) efficient means of communication; and

(3) high mobility.

Improvements in these areas have been universally accepted as effective in securing permanent reductions in the levels of criminal activity. Implementation of these strategies will reduce the need to resort to SOEs. It is of critical importance that we devote more attention and resources to these objectives.

While the SOEs have been accompanied by a decline in the murder rate, there are some factors which point to weaknesses in their effectiveness. It is also clear that the security forces need to establish a higher standard of intelligence. Although SOEs were established in areas with a high level of violent crimes, the firearms and ammunition seized during the SOEs appear to be significantly lower in numbers than in the pre-SOE period. During the SOEs numerous persons have been detained for relatively long periods but only a small percentage of those persons have been charged with any offence, thus suggesting that the detentions are random and are not guided by any credible information. The measures taken against the detained persons are required by the Constitution to be reasonably justifiable for the purposes of dealing with the emergency. It does not appear that these detentions of large numbers of persons over long periods can be constitutionally justified.

Very importantly, where an SOE is imposed on a community, the detained persons should be —

(i) given the opportunity immediately to communicate with their family and an attorney-at-law;

(ii) provided with humane and adequate living conditions certified by public health authorities;

(iii) facilitated with the means of making prompt representation to a Review Committee.

Very importantly, the constitutional provisions for the expeditious review of all detainees' cases must be fully implemented.

Where persons have been detained and no reasonable grounds existed for their detention, they should be compensated for the losses they have suffered.

The Public Defender, Mrs Arlene Harrison-Henry, recently made a presentation to Parliament on the conduct of the authorities in the implementation of ZOSOs and SOEs. Some of the disclosures are disturbing.

The Charter of Rights states that any person deprived of his liberty shall be treated humanely and with respect for the inherent dignity of the person. This is an obligation that Government authorities should respect, whether or not a State of Emergency exists. Our Charter has a unique provision which expressly grants to the Court the jurisdiction to determine whether the proclamation of a state of emergency, or any measures taken under it, are reasonably justified for the permitted purpose. (s). 20(5).

The varied news and conflicting opinions on the justification for the extension of the SOEs, and the uncertainties as to how those issues are to be determined, make it clear that there is need for widespread consultation and discussions on the subject, and for the creation of a national consensus on some of the major aspects of the matter.


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