THE dispute over whether Jamaica’s laws support the detention of individuals under a state of emergency (SOE) for prolonged periods without charge will be settled by Supreme Court judge Justice Bertram Morrison on August 25, five days before the security measure which is now in force is slated to end.

The question is one of several hotly disputed in the case brought by five detainees: Nicholas Heat, Courtney Hall, Gavin Nobel, Courtney Thompson, and Everton Douglas, against the State. The five men, who have been held under the ongoing SOEs — some for over a year — are challenging the legality of their detention.

Yesterday, John Clarke, one of the attorney’s representing the men, in a submission heard by Justice Morrison, charged that the Government’s lawyers had failed to show whether or not the laws of Jamaica support the detention of the men for a protracted period without charge. He further argued that the holding of individuals indefinitely under a state of public emergency, at the will of the prime minister and his Cabinet, is not upheld by the Jamaican Constitution.

“It cannot be for the executive to arbitrarily determine the suspension of the rights of persons. It is for the court to determine,” Clarke stated.

He further argued that it was also for the court to determine that there was, in fact, an emergency. According to Clarke, an “emergency” as defined under the constitution is triggered when life is threatened, and cannot be triggered by an ordinary “situation”.

He argued, too, that Jamaica’s “Constitution only points to a period of public emergency, not a state of public emergency”.

Clarke, in pointing out that an emergency law must have sufficient procedural safeguards to ensure that a person’s rights are protected, said the response of police officers to the court on the matter, so far, indicates that there are not sufficient procedural safeguards.

In dismissing arguments that the matter was to be rightly aired before a Constitutional Full Court, Clarke said: “Our case before you in relation to the determination of these matters is quite well placed. Even when SOEs are declared, the rule of the court is still required, there is no provision in our constitution that makes it so that only a full court determines these matters.”

In pointing out that the section of the constitution that speaks to emergencies has been repealed, he contended that the text of the Emergency Powers Act is, therefore, inconsistent with the constitution, adding that other courts in other rulings have said the Act is “too vague, too wide and does not concur with the present constitution”.

“We have to be very careful that we do not allow the powers of the judiciary to be whittled away by the executive.

“We hold that indefinite detention at the will of the executive in Jamaica is something that is not acceptable by the constitution. We have noted 101 reasons why we formed the views that the Emergency Powers Act is inconsistent with our constitution. A single judge has the jurisdiction to make this decision. We identified at least 68 conflicts as it relates to the Emergency Powers Regulations. The detention orders are unconstitutional,” Clarke told the court.

Arguing that the detention orders for the men were made after they were detained, he charged that the Government was attempting to use a detention order for a retention order.

Yesterday, Louis Hacker, the lawyer representing the attorney general’s office, in his submission, said that “what is clear is that it has been maintained by the respective police officer that there is reasonable grounds to suspect that these applicants all pose a threat to public safety and should be detained until the end of the SOE”.

He further vouched for the validity of the detention orders and the integrity of the members of the tribunal established under the legislation to hear from individuals who protest their detention. Hacker, in pointing out that the constitution places a duty on the minister of national security to act in accordance with the directives issued by the tribunal, noted that all the applicants went before the tribunal with their lawyers.

Hacker maintained that although the men might have been deprived of their liberty, it was supported under the constitution.

Justice Morrison is to present his full judgement on August 25 at 10:00 am.