I am not a lawyer; however, I have always tried to understand the objectives and similarities of two government’s Special Security Enhancement Measures, the Zone of Special Operations (Act 2017) and to some extent, the State of Public Emergency (Act 1938). What are the essential contrasting difference and/or similarities of these two provisions?

I must point out that these two provisions are not strategies to fight crime and violence within themselves. They are enhancement provisions given to the security forces by the Government through which they must create strategies to achieve their security operations objectives. My understanding of the essential provisions, difference and similarities are outlined as follows:

1) The Zones of Special Operations (ZOSO) (Special Security and Community Development Measures) (Act 2017) is a provision declared by the prime minister in council, that is, acting on the advice of the National Security Council. The period of this imposition is 60 days and there is provision for a further 60-days extension issued by the prime minister in council after consultation with the heads of the security forces. An order for an extension is subject to affirmative resolution by the House of Representatives (S4 (1)).

2) The Act provides for special measures for upholding and preserving the rule of law, public order, citizens’ security, and public safety in special geographical areas of Jamaica.

The objective of the Act is to:

a) empower the prime minister in council to declare an area zones of special operations;

b) uphold the rule of law while protecting the fundamental rights and freedom of persons who reside or conduct lawful business in that zone;

c) conduct law enforcement activities to rid a zone of all illegal weapon, ammunition, and other contraband;

d) empower members of the joint force to search a person, vehicle, or place without a warrant, within a zone if they reasonably suspect that an offence has been committed or about to be committed;

e) provide that the joint command may establish a cordon and declare a curfew within a zone;

f) promote social and economic development in a zone through the efforts of various government agencies and civil society, and provide the establishment of a committee, to among other things, develop a sustainable development plan for the zone;

3) The state of public emergency is issued under the Emergency Powers Act of 1938. This proclamation is made by the governor general that there is a period of public emergency as defined by section 3.26 of the constitution. The period of this imposition is 14 days in the first instance, and thereafter a longer period of three months as both Houses of Parliament may determine by resolution supported by a two-thirds majority vote. This process is similarly repeated if a further extension is warranted.

4) The grounds for the declaration of special operations must be due to rampant criminality, gang warfare and the escalation of violence and murder resulting in the threat to the rule of law. This, however, must also be a situation beyond which normal policing is having difficulty in controlling. The same reasons are given for the zone creating of state of public emergency, but a public emergency can also be occasioned by:

(a) the imminence of state of war;

(b) engagement in a war of Jamaica and foreign state;

(c) results of occurrence of natural disaster, earthquake, hurricane, flooding, fire;

(d) outbreak of infectious disease, for example in September 2004 a state of public emergency was declared in the advance of the passage of Hurricane Ivan and in August 2007 a state of public emergency was declared in advance of Hurricane Dean.

5) The zones of special operations are localised within a narrow geographically define area, (S2.4 (3). The entire island cannot be declared a zone (S2.4 (4). Meanwhile, in a state of public emergency, a wider geographical region is declared. The entire island can be put under a state of public emergency, (S26 constitution).

6) Reference is made to the prime minister regarding the zone of special operations, who acts as the competent minister, while in the state of public emergency the proclamation reference is made to the minister of national security. (Note: Ministers are not mentioned in the Emergency Powers Act because it is the State which empowers the governor general, who makes the proclamation rules and regulations under which the minister is given the responsibilities.

7) There is no power granted under the Zones of Special Operations to exclude and deport people from Jamaica; that is, the declaration of persona non grata. There is no power by the minister to make a detention order for persons nor no Emergency Powers Review Tribunal for detention. Individuals either have to be taken to a justice of the peace (JP) or after 24 hours be taken to a resident magistrates’ court, now parish court, for processing. Meanwhile, under the state of public emergency, the governor general can make provision for people to declare persona non grata. The minister can make a detention order and there is provision for an Emergency Powers Review Tribunal.

8) The accountability framework is spelt out in the zone of special operations under the joint command, and those who breach the provisions are liable to disciplinary proceedings. The joint command must submit a written report to the National Security Council every 10 days. (S9 (1) ZOSO.) In the state of public emergency, while expected and done, this is not statutorily provided for.

9) In the zone of special operations, the joint force cannot command and take over property. While in the state of emergency, the security forces can command and take over a property for use during the period except for land. However, they cannot acquire it.

10) In the Zones of Special Operations, there are restrictions on the impositions of curfew and cordon, that is, cordon cannot be for more than the 24 hours and two curfews cannot be for more than 48 hours. (S13 ZOSO) No such restrictions exist under the state of public emergency.

11) The Zones of Special Operations Act makes provision for body-worn cameras during operations in the zone subject to availability, (S19). No such provision in the Emergency Powers Act nor the proclamation rules and regulations. All weapons and ammunitions assigned to members of the joint forces must be registered with the Institute of Forensic Science and Legal Medicine, (that is, Government Forensic Lab) before being deployed in the zone of special operations, (S20). No such provision or requirements are there in the state of emergency.

12) Under the zone of special operations, a person shall not be arrested or detained unless the person who is in charge of the operation is satisfied that there are reasonable grounds for the arrest and detention. A JP or the resident magistrate/parish court may release at any time when that person is brought to him or her, any person so detained under the ZOSO Act. Under the zone of special operations any authorised person may arrest or detain any person whose behaviour gives reasons for suspecting that:

(a) He/she has acted or is acting in a manner prejudicial to public safety; or

(b) He/she has committed or is committing or is about to commit an offence against the rules and regulations under the Emergency Powers Act. Also, in the state of public emergency, the deputy superintendent of police can extend the period of detention beyond the initial seven days. Thereafter, a senior superintendent of police can extend the detention of the duration without bringing the person before a JP or the resident magistrate court.

13) The zone of special operations has an establishment for social intervention committee (which must be established within five working days of the declaration of the zone, (S23 of the ZOSO Act). This committee is responsible for:

(a) assessing conditions within the zones including environment, housing, land tenure, settlement, health and physical infrastructure;

(b) identify threats to sustainable development and communities within the zone;

(c) develop sustainable development plans for a committee within the zone;

(d) recommend social intervention; and/or

(e) coordinate the implementation of a social intervention programme by the relevant bodies.

There is no such committee under the state of public emergency. The only committee-type structure is the Emergency Powers Review Tribunal under rule 38 of the proclamation.

The value of these two special security enhancement measures depends on the results of the strategies the security forces employ to achieve the operational objectives they set out to achieve. Therefore, the management, supervision and evaluation process are critical factors to assess whatever strategies they have implemented and are working with.

Christopher Bryan has read for master’s degrees in government and national security and strategic studies. Send comments to the Jamaica Observer or christopher.bryan1000@gmail.com.