Ian Boyne, Contributor

Finally, a reasoned, nuanced, non-emotional and intellectually engaging response has emerged to the proposal for preventive detention being pushed by Don Robotham and me.

The response, from leftist intellectual Kamau Chionesu, will not satisfy either Don or me, of course, but at least it makes a serious attempt to dialogue in the Jamaicans For Justice online forum, and does so in a context where ideas are taken seriously. Chionesu maintains that "preventive detention seems a dangerous idea in Jamaica's current social context", but does not go on to argue in the philosophically naive, absolutist way other detractors do to the proposal first mooted by the country's must-read columnist Robotham.

Chionesu makes the critical point that preventive detention must be accompanied by similar "emergency" administrative measures to "check the likely abusers of authority (if this can even be conceived)".

And when one considers what seems like an obvious vulgar and senseless abuse of power in De la Vega City last week, when at least 12 young people were carted off to jail for a night simply by being on the road, then no one can doubt the legitimate fears about preventive detention. So the discussion must move to how it could possibly be implemented without abuse - though absolutists would say that preventive detention is inherently abusive.

Correct

Dismissing the view that rights can be seen non-contextually, Chionesu, who takes a Marxian perspective on the issue, writes that "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."

Chionesu asks a poignant question - the really critical question: "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?"

Robotham and I should be critiqued on our assessment of the gravity of the situation (though there seems to be wide though not total appreciation of the gravity of our security challenge), and on the likelihood of the proposal having any effect on the bloodletting.

Again, the human rights groups have been arguing from absolutist positions, as evidenced by their open letter to the attorney general and justice minister last week. "It makes no sense to do away with habeas corpus as a means to uphold the rule of law. Habeas corpus is the foundation of the rule of law."

It is not. I challenge these groups to prove that or to show any philosophical justification of that. The right to the presumption of innocence is not the foundation of the rule of law. If lawyers maintain this, then I say they are poorly trained in jurisprudence or philosophy of law.

The principle of the rule of law is far deeper and more fundamental than habeas corpus. Our philosophical ignorance is really a constraint on serious discussion in this country.

The state has the responsibility to protect the human rights and the liberty of the people as a whole, and sometimes it must restrict or suspend the liberty of a few to do that.

While rights inhere in individuals, it is the state as an institution which has the responsibility to balance the interests and rights of all of us. At least this is the theory in class society. (The Marxist sees the state as "the managing committee of the bourgeoisie".)

The critical questions are whether our situation really warrants the suspension of some rights, and what steps and safeguards can we put in place to eliminate or minimise any possible abuse.

In their open letter to Dorothy Lightbourne, the rights groups reject her sensible suggestion that a respected three-person panel could be established to review the status of persons detained. The groups said this "would effectively establish a parallel justice system specifically to deliberate over the removal of a person's rights". It's the same inflexible, naïve absolutist position being argued.

Then the group falls prey to the crippling either/or thinking by stating: "Implement the recommendations of the MacMillan Report, including those to reduce corruption, de-garrison communities and continue the process already begun for reforming the justice system and the police force, and we are certain we will begin to see a decrease in the murder rate." What Robotham and I have been arguing - and what I hear Bruce Golding saying - is that those necessary things can take place alongside prevention detention. It is not either/or.

Fundamental error

But, obviously, all those critical and imperative things identified in the MacMillan Report cannot be done this afternoon and we need to do something about crime today, not tomorrow. Don't make the important the enemy of the urgent. The fundamental error in the thinking of the human rights groups lies in their philosophical assumptions, which are misguided and historically flawed, and their failure to escape the trap of either/or thinking.

I was the first columnist to do a full column in high praise of the Macmillan Report when it was released in 2006. I urged the then People's National Party government to adopt it. I was the first one to remind the country of its more significant proposals after MacMillan was recently appointed security minister. I am an unrelenting advocate of social intervention, values and attitudes transformation and fundamental change in our power relations to strengthen the position of our marginalised underclass. Nobody needs to lecture me about the need for social intervention, justice reform or the de-garrisonisation of our communities. I know the baleful role that our politicians have played in our history and of their enormous contribution to the crime crisis that we face today.

But when a people's right to life and liberty is at grave risk, the state has a right - indeed, a duty - to restrict the rights of some in the interest of the majority.

The human rights groups argue as though they have never heard about the concept of lesser evils or greater good in philosophy. They have an ideal world in their minds and reality must not disturb this. In this ideal world there are no genuine dilemmas or conundrum, only perfect choices. Perhaps only a deeply fundamentalist society like ours could throw up such fantasy-laden, idealistic thinking.

Kamau Chionesu provides a reasoned, philosophically sophisticated response to the preventive detention proposal. He argues that social intervention and the empowerment of the masses is crucial to the reduction in crime, and he expresses serious doubt as to whether we will be able to achieve that, given our class relations and the global economic crisis. Excellent point.

Warlords

Social programmes are costly, Chionesu reminds, and "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". Then Chionesu really advances the conversation by noting tellingly that "The disposition and means to effect violence is distributed down to the lowest level of affected communities. It is no longer the case, as in the 1970s and 1980s, that a central, politically connected authority controlled who had access to arms. Rather, arms are now widely dispersed."

Chionesu suggests that removing just the dons or main warlords through preventive detention could actually worsen our crime situation. "Remove that remaining vestige of informal central authority there is and conflicts could escalate over succession and submission. The history of the Principalities of Medieval Europe provides ample evidence of this."

So we would have to be prepared to lock up more than a few and, if so, Kevin O'Brien Chang's point of more prison space comes to view (or Robotham's sanitised detention camp).

The good thing about Chionesu is that he discusses alternatives to preventive detention. He mentions the citizens' militias which were used during and after the American Revolution. He notes Peter Phillips' home guard suggestion, but observes that that could be problematic, too. Indeed, there are no non-problematic 'solutions' to our crisis. No one should pretend there is. What we know is what we have is not working.

Social unrest a possibility

And what we know is that, as the front page of the Observer on Thursday notes, there is a global economic crisis posed by spiralling food and energy prices and a US recession.

Chionesu asks a penetrating and troubling question: "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?"

In Chionesu's considered opinion, prevention detention "seems a bad idea, not because rights are universal and absolute, but because the social conditions required for it to work do not yet exist".

This is the kind of serious intellectual engagement I am seeking, and to which I shall respond next time, next time.

Ian Boyne is a veteran journalist who may be reached at ianboyne1@yahoo.com. Feedback may also be sent to columns@gleanerjm.com.