Kamau Chionesu, Contributor

In separate pieces published in last Sunday's Gleaner, Ian Boyne and Don Robotham argued the case for preventive detention.

Preventive detention seems a dangerous idea in Jamaica's current social context. It should not be considered without: (1) similar emergency "administrative" measures to check the likely abusers of authority (if this can even be conceived!); (2) a clear understanding of what a social intervention programme would look like; and, (3) how it is to be funded. The question of funding will likely engage the entire society to declare its stance regarding marginalised groups in view of the burden it will impose on the middle and upper income strata. The rich will be able to deflect the burden elsewhere.

Preventive detention is an encroachment on the nominal rights typical of liberal democracy. The idea of universal human rights is the product of capitalist democracy, an outgrowth of the bourgeois revolutions of the 17th and 18th centuries. The then capitalist middle class proclaimed the universality of right to liberty and equality, and the rule of law, in opposition to social privilege for the Church and nobility, and the arbitrariness of monarchical rule. However, while the bourgeoisie espoused the universality of rights to attract the support of the labouring classes (the fourth estate) to its cause, on its ascension to power, it sought to tie the exercise of some of these rights to property - effectively denying these rights to the fourth estate. It took over 100 more years to secure universal voting rights, for example.

No real commitment

In like fashion, the idea of universal human rights is a paper rather than a real commitment. Rights are not real unless they can be enforced. And the enforcement of liberal democratic rights depend on one's social position and the means available to do so. Consequently, the notion that rights are universal (over individuals, territory and time), innate, God-given, and predate constitutions is pure (philosophical) idealism. Rights are never absolute or universal in practice. The rights one has is thus a matter of historical, individual and social context, and there is no such thing as the impartial, non-discriminatory enforcement of rights.

It ought not to be surprising, therefore, that the State reserves the right to suspend or modify rights where it thinks the situation warrants. In this regard, Boyne is correct. The substantive question is, does the current situation in Jamaica warrant the suspension of the right to liberty, and will such measures help to effectively cauterise Jamaica's bloodletting.

Both Boyne and Robotham seem to think the situation clearly sanctions such a move, subject to the caveat of social intervention measures. History, however, teaches that one must be very careful when liberal intellectuals are almost certain they read the social situation correctly, and prescribe necessary curtailment of rights from which they are effectively exempt - some animals are clearly more equal than others! Also, some intellectuals suffer from a proclivity to impose what they deem to be good for society, on society, against the will of society, opening the door to proverbial slippery slope. Both proponents refer to a social consensus about the need for social intervention measures. But consensus is not the same thing as commitment. It is being suggested, preventive detention, if initially successful, will only secure a temporary hiatus. The overriding rationale then is that preventive detention can create social space to initiate community renewal, and arrest the problem of neglect that leads to youth and social alienation.

Social programme

A critical plank of the detention proposal thus is the complementary social programme. Social programmes are, however, costly, and as Robotham suggested in an earlier piece, that the rich and upper middle class be taxed to fund such a programme. It seems therefore, that approval of preventive detention ought not to be divorced from considerations regarding the appropriateness of the design and funding adequacy of the social programme. If the society is not willing to pay for such programmes, then preventive detention seems likely to only foster the ascendancy of the next tier of warlords.

But what else does the proposal presume? At minimum, it supposes the concentration of the will, means and power to commit violence in the hands of the warlord and perhaps his first-tier lieutenants. This appears unlikely to be the case.

The disposition and means to effect violence is distributed down to the lowest level of affected communities. As the power of distributed versus centralised computing is demonstrated via the Internet, so is the power, will and means to commit to violence dispersed, and thus capable of unleashing the madness that we now observe. It is no longer the case, as it was in the 1970s and '80s, that a central, politically connected authority, controlled who had access to arms. Rather, arms are now widely dispersed, if only for self-defence. It is the challenge to informal central authority that lies behind much of the internecine warfare that manifests as reprisal killings. Remove what remaining vestige of informal central authority there is, and conflicts could escalate over succession and submission. The history of the principalities of mediaeval Europe provides ample evidence of this, and there is not much that is new in the patterns of human social life.

Another presumption is that the upsurge in violence is not being consciously coordinated. While there is neither suggestive nor compelling evidence that it is, it is clear that the Government is politically weak in view of its slim majority. Might it be that elements accustomed to feeding at the public trough, and now unable to secure work for their fleet of trucks, etc., are fomenting this upsurge? If so, are these businessmen likely to be subject to detention? What this speculation points to, again, is one mechanism that helps to maintain the garrisons that benefit political interests. Perhaps, the sanction of preventive detention should be tied to initiatives for dismantling the garrisons.

Since we can be assured that all power will be abused, and we can be certain that Jamaica's instruments of state authority will abuse marginalised youths, mechanisms will be needed to check such a tendency. Can any legislation that authorises preventive detention be conjoined to "non-judicial, administrative measures" to check and detain abusers? Is this conceivable? If it is inconceivable, then we might as well accept that preventive detention, and any additional powers granted to the agents of authority, will degenerate into instruments of oppression. And, since we face a progressive deepening of our socio-economic crisis, given the financial and economic position of the country, social unrest is a real future possibility. Under such circumstances, how wide might a preventive detention net be cast when the "evening" comes?

Prosecute the fight

If not preventive detention, then what? During and after the American Revolution, citizens' militias were organised to prosecute the fight, and defend the new nation, against English and European despotism. Given the vast expanse of territory to be defended this was unsurprising, since the regular army lacked such a capability. The Second Amendment states: "A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed".

In like manner, low-income communities in Jamaica are under siege from despotic warlords and dispersed networks, and need to be organised into some kind of citizens' militia, trained and equipped to defend their communities. Clearly, the State is incapable of defending them, and apparently can only temporarily saturate their communities with its agents. One can only imagine what it feels like to be under attack, and lack the means to defend oneself having been deprived of arms by the State; of course, to call the police is a nonsensical thought. In this regard, the proposal floated by Dr Peter Phillips in his Sectoral Budget presentation, merits serious consideration. But then what would we do if we had another '1999', except this time, with an armed, organised citizens' militia? Then again, Jamaica makes no pretence at being a 'free' state. Citizens must therefore be left to their own devices to secure their defence.

Nonetheless, I suspect that the funding question, if confronted, will force the society to declare its commitment to alleviating the conditions of marginal groups. Alas, I doubt the strength of any such commitment. Consequently, preventive detention will likely fail to achieve the ends that constitute the basis on which it is being sold. It seems a bad idea not because rights are universal and absolute, but because the social the conditions required for it to work do not yet exist. In the end, the State will do what it has to do to preserve some semblance of social order, and attempt to arrest social disintegration, while keeping that social element that has been disconnected from the economic process, in its place. The "universality" of rights does not apply to them. They must find ways to eat without disrupting social order.

Horace Levy, Contributor

Coming as a thoughtful and historical approach and with its reference to cost, Choinesu's rejection of preventive detention has value. I would disagree, however, that social intervention is a long-term thing and itself costly.

In Jones Town and Torrington Park, it took the Peace Management Initiative (PMI) four months to stop a three and a half year war that took 68 lives (plus another 13 killed by the police) and to lower homicides to two in the last five months of 2007 and zero in the first six months of this year. The PMI's expenditure on the area over one year was $1 million.

The area definitely requires heavier investment and more time to really stabilise the situation. But I doubt that the cost will be comparable to what preventive detention will demand. The PMI projects that with $81 million instead of the $27 million this past year - the homicide rate in Kingston could be reduced in two years by at least a third. This may take time but once people see serious intention and the beginnings of a turnaround they respond enthusiastically.

The main argument against preventive detention, however, is that it is a cop-out. An attack on the root of the problem is what is needed, not another panic reaction.