MANAGING partner of the law firm which successfully sued the Government in the case of the St James taxi driver who had been illegally detained for 90 days during the 2018 state of public emergency (SOE) is indicating that it has a number of other clients lined up to follow suit, but says it will be trying to negotiate with the Attorney General’s Department to see if those matters can be settled out of court in light of the judgement on Friday.

The Constitutional Court, on Friday, awarded nearly $18 million in damages to Roshaine Clarke, a St James taxi operator, who it found had been unlawfully detained for months under the SOE that was declared for the western parish in January 2018.

In disposing of the case, which was argued by Michael Hylton QC and Michael Hemmings, the court held and declared the Emergency Powers Regulations Sections 22 and 32… “in respect to the fundamental rights of freedom of movement, Regulations 30, 33 and 38, in respect to the fundamental right to freedom and liberty, breached the Charter of Fundamental Rights and Freedoms of the Constitution”.

It also found and held that Clarke’s fundamental rights and freedoms under the constitution, in particular his right to freedom and liberty, his right to be informed of the reason for his detention as soon as is reasonably practicable, and his right to be brought forthwith or as soon as is reasonably practicable before an officer authorised by law or a court, had been violated and that he’s entitled to damages as redress for these violations.

In the aftermath of the ruling, Clayton Morgan, managing partner of the firm Clayton Morgan and Company said, “My first reaction is that the system has taken so long that our client has had to wait so long to get justice. This matter was filed over two years ago and that is after our client had spent a considerable period of time in custody under the state of emergency. He was in custody for over 90 days. He was released without charge.”

Said Morgan: “We, as attorneys, knew all along that this was unconstitutional, that it had no legal foundation whatsoever, that all of the detainees who were incarcerated by the Government of Jamaica under the emergency powers legislation were illegally detained, their constitutional rights were breached, they were victims of net fishing. We warned the relevant powers — the Opposition and other civic bodies throughout the country — that their actions were unconstitutional, and they failed to listen. Consequently we were instructed by our client to file action against the relevant authority for redress, so what you see here from the court today is a as a result of legal proceedings,” he noted.

The attorney said, while the legal team was waiting to see whether the Government would be appealing the decision, it would be foolhardy for it to do so, considering the ruling and pending lawsuits.

“Although this is their right, we believe it will be an exercise in futility, having regard to the law and the precedence of previous cases not only in Jamaica but throughout the Commonwealth,” Morgan said.

He, in the meantime, lamented the experience of his client while in custody, adding that it was hoped that the compensation awarded would be swift in coming.

“We have one more river to cross, and this is how long it’s going to take the Government of Jamaica to pay the damages awarded. Traditionally, and in our experience, it may take years for us to receive the award from the Government, we can only hope that, that will not be the case in this case,” Morgan told the Jamaica Observer.

In the meantime, the attorney said Friday’s ruling will have serious repercussions on the way in which the Government conducts or announces future SOEs.

“The law was not meant to be applied as was done by the Government; that’s the first thing, the law was meant to be applied as emergency for short periods of time, not as a long-term measure. This long-term measure was not envisaged by the constitution or the Act. Under the Emergency Powers Act, the accused persons cannot be brought before a resident magistrate to apply for bail under the Bail Act. They can be brought before the Tribunal (established under the Emergency Powers Act) for their cases to be examined, not for bail hearing, but about their welfare, such as how long they have been in custody and so on, once the minister signs the detention order,” Morgan argued.

And, commenting on state of emergency which was declared for St Catherine shortly before the ruling was handed down, the veteran attorney said in his opinion the judgement would not have any immediate effect on the measure because of the duration.

“…I don’t think this one [ruling] will have any immediate effect on that, because it is for 14 days; the Government has the power and the right after receiving advice from the security forces in order to maintain law and order in a situation like what we have in St Catherine,” Morgan said.

“Without the support of the Opposition they have the right to do so, but only for limited periods of time. My client was in custody for months, and we are saying they didn’t have any rights or powers to have my client in custody for such a long time. Upon the expiration of the SOE in Spanish Town they will have to get parliamentary approval if they want to extend it. For a limited period only they are quite within their constitutional right to maintain law and order to impose a state of emergency,” he added.

The Opposition, in a statement issued to the media on Friday, said the court ruling solidifies its arguments that the use of SOEs have been in violation of the constitution, adding that the $17.8 million in damages awarded to the claimant “speaks to the magnitude of the State’s potential liability where thousands of young people could become claimants in similar cases, at a cost that would be borne by the Jamaican taxpayers”. It reiterated “that there are already extensive and sufficient existing legislative tools available to law enforcement to get a grip of the crime situation in the country”.

Attorney General Dr Derrick McKoy, QC, in a statement issued just before press time Friday, said the ruling was acknowledged, but pointed out that the Government had amended the regulations governing SOEs after 2018. Those amendments, he said, were to satisfy concerns raised by the litigants in the courts regarding the process engaged in the detention of suspects.

“These amendments are currently operating in the regulations governing states of public emergency. However, the Attorney General is now in the process of a detailed review of the ruling to ensure that the current regulations are consistent with the court’s ruling. The Government of Jamaica respects the court’s ruling and commits to ensuring that the judgement is thoroughly followed,” Attorney General McKoy said.

Prime Minister Andrew Holness, speaking at a Jamaica House press briefing at which the St Catherine SOE was declared ahead of the court’s ruling on Friday morning, said: “The Government recognises that our present legal and constitutional framework needs clarification and, in some instances, redefinition and therefore we always welcome the court’s clarification because it makes it easier for us to define policy, so we welcome the guidance of the court.”

Continuing, the prime minister said, “But we also recognise that the threat to our democracy now is far different from when the constitution was conceived. The constitution was conceived when the threat actors were easily identified, now we have different kinds of threat actors, people that are very much embedded as part of our society, they are citizens, they are oftentimes actors whose intentions are to control territory within the State, dons and gangs who seeks to control corners and territories and seek to establish enterprise.”

In handing down a judgement for a similar case in September 2019, Supreme Court judge Justice Bertram Morrison dealt the first blow to the Government’s use of SOEs when he ruled that the extended detention of five men under the measure breached their constitutional rights.

Justice Morrison also said that the Emergency Powers Regulations related to the detention orders and appearance before a tribunal gave unfettered discretion to the police and national security minister, in relation to the committal of persons to penal institutions or jail for criminal offences.

None of the five men — Gavin Noble, Nicholas Heath, Courtney Thompson, Everton Douglas and Courtney Hall — was charged for any crime, but, in the case of Noble, was held for 461 days. Thompson was held for 365 days; Heath was locked up for 361 days; Douglas 177 days; and Hall, 395 days.