By Dr. Lloyd Barnett, ContributorTHE PROPOSAL to amend the Defence Act to give the army the same powers as the police raises fundamental questions concerning our system of government and the preservation of democracy. Accordingly, it cannot be examined merely as a means by which the effectiveness of crime-fighting efforts may be enhanced.
Comparative historical study indicates that the worst civil-military relations are generally experienced where a nation faces internal threats and it becomes necessary for the military to be involved in civilian operations.
There are then dangers that (1) the military will assume or be given additional powers which they will subsequently be unwilling to give up, (2) the military will take over civilian functions so that there is less incentive to strengthen the capabilities of the civilian organisations, (3) the military will lose its focus on its main responsibilities and concentrate on functions appropriate to internal administration and (4) the opinion will become widespread that the civilian organisations are incapable of performing their functions and that we are dependent on the military.
Diamond and Platter in the Introduction to their book "Civil-Military Relations and Democracy" state:
"Yet there are times when the military must take on non-combat missions owing to special circumstances, as during natural disasters or in response to terrorist campaigns.
What is essential in such cases is that the new non-combat mission be understood by all concerned as purely transitional, that a firm timetable be put in place for its return to civilian control, and that checks be put in place requiring civilian authorisation of any extensions. Each nation's fundamental laws should include provisions that restrict the military's mission under normal circumstances and specify under what conditions exceptions can be made."
Our Defence Act, although failing to define the circumstances in which the military should be entrusted with police functions and the precise conditions under which they should operate in those situations, made an important distinction between "powers" and "privileges". The Defence Act was passed in July 1962 and was drafted at the same time as the Independence Constitution was being drafted and it was recognised that as an independent state we should establish our own defence force.
The Right Excellent Norman Manley stated in the parliamentary debate on the Bill: "No Government can pretend to be safe unless it is prepared to resort to some residual force when internal trouble arises". Right Excellent, Sir Alexander Bustamante stated: "The Armed Forces will only be used if the Police need help. If they need help, they will be brought down, for Law and Order will be maintained for the security of the country must come first". Both leaders therefore treated the future role of the army in civilian operations as auxiliary to the police.
The Founding Fathers of our Constitution did not contemplate that the army would be involved in civilian operations on a permanent or continuous basis and on an equal footing with the police in crime-fighting activities. The Defence Act was patterned on the U.K. statutory provisions, where the law and the tradition have been to keep the army separate from the police. Thus, the police can only be called out for military service in the case of actual or apprehended invasion of the Island. In the U.K. the military forces are only given police powers in relation to specific matters such as customs and excise and are only employed on a temporary basis with respect to urgent matters of public importance.
The Founding Fathers then knew that it was on the police that the law imposed a continuous duty to keep watch, preserve the peace, apprehend offenders and bring them before the courts.
Importantly also, it is the Commissioner of Police who has the operational command and superintendence of the Police and who alone has the right to deploy and assign duties to the officers of the Police Force. In the case of the army, the Prime Minister, the Cabinet and the Defence Board which is controlled by the political directorate define the duties of the army and may give directions as to its operational use. Furthermore, in the case of the police force special constitutional provisions were being made for their appointment, discipline and dismissal by the creation of a constitutionally protected Police Service Commission. There was no parallel constitutionally created body for the military.
It is significant to note that when in 1994 the Honourable K.D. Knight, Q.C., M.P., then Minister of National Security and Justice introduced the Bill to amend the Constabulary Force Act, the Memorandum of Objects and Reasons stated:
"For some time there has been the perception among members of the public that the operations of the Police Force have been susceptible to political pressure or political interference. The Government is conscious of these concerns and, being mindful of the need to maintain the integrity of the Police Force, and having regard to the recent Report of the National Task Force on Crime, is seeking by this Bill to clearly distinguish the role of the Commissioner of Police in having the sole operational command of the Police Force from the role of the responsible Minister in determining the general policy to guide the Force's activities."
It is therefore completely inconsistent with those stated objectives to confer on the military, which is subject to the operational direction of the political directorate, all the powers of the Police Force.
The question is whether there is any necessity to depart from well-established principles and practices. This Government and all previous Governments have always emphasised that when the Defence Force is called out its members would act as auxiliaries to the police and not independently. It is not necessary to give members of the Defence Force the equal powers with the police to enable them to carry out these auxiliary functions. As the law now stands they can arrest any citizen whom they observe to be committing a serious offence, such as robbery or shooting with intent.
They can assist the police in carrying out lawful searches and arrests, in establishing cordons and in monitoring curfews. But since they are not trained in police work or in the legal requirements of such work and are not involved in police investigations, they cannot proceed on the basis of their own independent judgement or suspicions and would have no legal basis for doing so. In fact, experienced army officers would and should be reluctant to do so.
Since they are not trained in civilian policing, they should not be permitted to act on their own, which is what would be facilitated by the proposed amendment, which has no defined limitations. Creeping militarism is a danger to democracy. It is not clear why the amendment is thought necessary since there is so little to gain as compared to the dangers of departing from the basic principles.
Dr. Lloyd Brnett is Chairman, Independent Jamaica Council for Human Rights.
