OPPOSITION Spokesman on Justice Mark Golding yesterday questioned the constitutionality of the Bill that the Joint Select Committee is reviewing, which will give the security forces “essential powers” in the fight against crime.

Senator Golding argued that the provisions of the Law Reform (Zones of Special Operations) (Special Security and Community Development Measures) would infringe on the constitutional rights of residents in volatile communities who are already under siege by criminal elements.

Senator Golding questioned the powers that would be given to Prime Minister Andrew Holness, as the head of the National Security Council, and the council itself to declare special zones.

“The National Security Council is a committee which operates in a very private and confidential setting. Its deliberations are not subjected to any form of scrutiny outside of its membership. This body, by making an order, can create an environment in these zones which are effectively a limited state of emergency with powers which do not normally exist,” Golding argued. He also pointed to the two 60-day periods of extensions that the legislation allows, during which time Parliament would be entitled to statements on the activities from the prime minister, but would play no role in the decision-making.

“That arrangement is unconstitutional because it’s inconsistent with the constitutional scheme of this democracy which allows citizens certain basic freedoms without curtailment by the executive and the security forces, except in limited circumstances with the oversight of Parliament. What this does is to bypass those checks and balances by putting in place a new mechanism which involves a similar array of powers being given to the security forces for potentially and indefinite period,” Golding said.

He contended, too, that although some of the powers that are given to the security forces in the Bill already exist in current legislation, procedural safeguards governing curfews, for example, are eliminated by provisions in the proposed legislation.

He also pointed out that any police officer or soldier could conduct searches without a warrant, and any member of the constabulary would have the right to seize documents, or vehicles, in these special zones, but that there are no procedures for the return of such property other than the police’s determination that they are no longer needed. “That is unconstitutional,” he remarked. Golding said the Bill further entered into unchartred waters by allowing the detention of a person if the officer in charge of the zone determines that there is reason for the arrest, regardless of a connection with a criminal act.

He told the committee that the legislation was not necessary for the dismantling of gangs given their high mobility, and would instead curtail the rights of the citizenry with the potential for abuse.

Attorney General Marlene Malahoo Forte, however, dismissed what she said were unsubstantiated sweeping statements. “If what he is saying is true, then it would mean that all of the existing powers are unconstitutional, and it is not so. He is trying to put into the mind of citizens that what we are doing is trying to create a state of emergency,” she argued, insisting that no new powers were being given to the security forces, and that the Bill had been carefully thought-out.

“The Government, in developing this piece of legislation, had at the forefront the fact that the fundamental rights and freedom of all persons in Jamaica are to be respected. The State has no intention of acting unconstitutionally,” she emphasised.

— Alphea Saunders