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The 'mother of all compromises' for SOE extension

Tuesday, January 08, 2019

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IT is a regrettable development to see the Government and the Opposition at war over the matter of crime in Jamaica today. The only agreement existing between the two sides is that there is a serious crime problem affecting the country and that there is an urgent need to address the matter.

The Government commenced using powers of a state of emergency under the Emergency Powers Act in January last year. A state of emergency was declared in Saint James and afterwards in areas of Kingston and Saint Andrew, as well as areas in Saint Catherine.

Before going further, I must confess that in last year January, when the first state of emergency was declared, I wrote an article encouraging the Government to declare a state of emergency for the entire country. The reason for this is that a state of emergency as we know gives the security forces extraordinary powers in the area in which it is declared. Had the Government declared a state of emergency for the entire country, it would have been in a better position to deploy additional military personnel in whatever area requires that deployment.

It is important to note that a declaration of a state of emergency throughout Jamaica does not mean that the security forces would have to be employed in every nook and cranny of Jamaica, as there are areas with little or no crime. What would be facilitated is that the security forces would be at will to descend on any area without warning and exercise the powers granted to them under a state of emergency.

It should also be borne in mind that a state of emergency is not a long-term solution to crime. We must therefore emphasise that a state of emergency is not a crime plan and is not a substitute for the development of a proper and credible plan which provides long-term solutions for crime. A state of emergency is a step taken in extreme circumstances and for a short and specific period and it is for this reason that the length of time for which a state of emergency can be declared is restricted in law and requires the cooperation of the Government and the Opposition to extend it beyond the period for which it is declared.

The Government and the Opposition need to settle down and find a way to come to an agreement as to how to deal with the crime situation. There is a widespread view that the Opposition should have given the Government a longer period of notice before declining to support the continuation of the state of emergency. On the other hand, the Government seems to be ignoring complaints from citizens, primarily those from the lower economic stratum, who have complained bitterly of being incarcerated for long periods even though they were not involved in any criminal activity.

The Government has also poured cold water on the complaints highlighted in the report by the learned public defender, Arlene Harrison Henry, who spoke of a wide range of abuses of detainees, including inadequate accommodation, inadequate arrangements for disposal of human waste, and inadequate meals. Indeed, supporters of the Government took to social media and launched attacks on the public defender, in some cases labelling her as political.

One of the most unfortunate incidents in all of this was a statement by a representative of the Government who, when responding to complaints about the inadequacy of the detention facilities, stated that these centres were not hotels and persons could not expect them to be of the standard of hotels. We need to understand that a detainee under a state of emergency is a mere suspect. He/she is not charged, and he is not in custody pursuant to any court ordering that he be remanded. He is in custody as a consequence of a member of the security forces exercising the awesome power available under the state of emergency.

Given the issues involved, it is not impossible for the Opposition and the Government to come to a compromise whereby the state of emergency can be extended to a specific period with certain changes being made to address all the issues referred to above. The changes that I propose should be made are as follows:

1. The Government should agree to amend the regulations to provide that no one will be detained for more than 14 days unless the minister signs the detention order which gives the person the right to apply to the court for a review of his detention. If the minister is not in a position to sign the detention order within 14 days the person should be released.

2. The Government should direct the Commanders of the security forces to meet with the public defender and make an impartial assessment of her concerns and thereafter address them. It is wholly unfair to detain individuals for so long that they have lost their jobs and their domestic lives have been destroyed. In some instances their partners have left them and moved on having not seen them for months.

3. The Opposition should agree to an extension of the state of emergency for a fixed period in exchange for which the Government will give its undertaking to provide the country with a crime plan by the end of the agreed extension.

4. The Government and the Opposition should agree to discuss the crime plan presented in private, thereby affording the Opposition to make a critique and contribution towards the development of a national crime plan out of the glare of the media and without one-upmanship by either side.

5. The crime plan crafted would therefore be one contributed by both sides and would be seen as a national effort forged between the Government and the Opposition in a united effort to confront the crime monster and eliminate it once and for all.

6. The Government and the Opposition need to exercise tolerance, understanding and a willingness to retreat from hard-line positions. Respect should be given to the rights of citizens as provided under the constitution and we must be careful not to encourage widespread disrespect of constitutional rights as this can come back to haunt us in the future.

The Government and Opposition must make the “mother of all compromises” in the interest of the country.

Linton P Gordon is an attorney-at-law. Send comments to the Observer or lpgordon@cwjamaica.com.

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