David Batts, Contributor"The struggle with evil by means of violence is the same as an attempt to stop a cloud, in order that there may be no rain." Leo Tolstoy (1828-1910).
I listened with great consternation, and no little disappointment, as the prime minister of Jamaica outlined proposed crime fighting strategies on June 17. It is apparent that the new administration is unable to look beyond the tried, tested and failed strategies of the Jamaica Constabulary Force.
Extending the time period in which persons may be detained without being brought before a court and reducing or removing the right to bail will serve only to further erode the constitutional rights of the individual and underscore the well-entrenched belief among urban ghetto youth that the poor have no rights. It is also to ignore the fact that the only real solution to the problem we face is a sustained reintegration process. This can be achieved with minimal cost if there is a focused effort by the state and right-minded citizens.
Many (including me) have written on this in the past but our leaders, our police and some commentators are so afraid that they succumb to the easier, quick-fix approach. Breaking skulls and reducing liberty will only bring long-term peace if there is a total surrender of democracy. This is why many totalitarian and fascist states boast of low crime.
Any attempt to combine democratic ideals and the reduction of liberty as a crime fighting strategy will ultimately fail. Indeed, it may lead to revolution and social instability. It involves the undermining of our Constitution for the expedient purpose of getting at individuals the police "know" but cannot "prove" are guilty. Arbitrariness and the rule of man instead of the rule of law will result. The policy will further alienate the citizen. Injustice will be perceived and, no doubt. in many cases will be real. Let us not forget that variations of this strategy have been utilised by the Jamaican state since 1865 and crime has not been reduced.
The Constitution
The fact is that our law already provides for a plethora of circumstances in which liberties may be curtailed. The Constitution of Jamaica states:
Section 15:
(1) No person shall be deprived of his personal liberty save as may in any of the following cases be authorised by law -
(a) - (e)
(f) Upon reasonable suspicion of his having committed or being about to commit a criminal offence; or
(f) to (k)
(2) Any person who is arrested or detained shall be informed as soon as reasonable practicable, in a language which he understands, of the reasons for his arrest or detention.
(3) Any person who is arrested or detained -
(a) ...
(b) Upon reasonable suspicion of his having committed or being about to commit a criminal offence and who is not released shall be brought without delay before a court; and if any person arrested or detained upon reasonable suspicion of his having committed or being about to commit a criminal offence is not tried within a reasonable time, then, without prejudice of any further proceedings which may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial.
Making non-binding recommendations
(4) ...
Sections 15 subsection (5 )of the Constitution exempts action taken under a law authorising measures during a state of public emergency provided the measures are "reasonably justifiable for the purpose of dealing with the situation that exists during the period of public emergency." Subsection (6 ) of Section 15 provides for a review of the detention of any person detained pursuant to sub section (5). The review is conducted by a tribunal presided over by a person appointed by the Chief Justice from among persons admitted to practice law in Jamaica.
Subsection (7) allows the tribunal to make non-binding recommendations.
The Emergency Powers Act and the Emergency (Public Security) Act provide for the method by which a state of public emergency is declared and the making of regulations to govern same. Note the "period of public emergency" means any period during which -
(a) Jamaica is engaged in any war; or
(b) there is in force a proclamation by the Governor General declaring that a state of public emergency exists; or
(c) there is in force a resolution of each House of Parliament supported by the votes of a majority of all the members of that House declaring that democratic institutions are threatened by subversion; [Constitution Section 26(4)].
It is to be further noted that Section 50 of the Constitution enables the Houses of Parliament by 2/3 majority in each House to pass a law suspending the Constitutional rights in Sections 13 to 26. This special Act procedure is fully discussed in Dr Lloyd Barnett's book - The Constitutional Law of Jamaica.
Constabulary Force Act
The Constabulary Force Act was emended in 1994 to allow the commissioner of police to establish cordons and to curfew certain localities. The amendment gives extraordinary powers to seizure and detention if "reasonably required". The safeguards provided include:
(a) That the person be immediately informed of the reason for his detention.
(b) The person is taken before a Justice of the Peace who shall determine whether or not there are reasonable grounds for the arrest or detention.
After 24 hours the person is to be taken before a Resident Magistrate.
Two points need to be made. If the crisis is such that the reduction of liberty has become necessary (and I doubt this is so) then the appropriate thing for the state to do is implement the constitutional provisions which will allow for the suspension of all rights. In other words our Constitution provides a mechanism in the public interest, for the suspension of rights for the greater good. Not to use this constitutional procedure is to expose Jamaicans to the arbitrary rule of the security forces without the political consensus contemplated by the Constitution. Anyone who has paid attention to the abuse of force by the security forces since the 1960s should be concerned if this is attempted.
The second point I wish to make is that the law already allows for detention upon reasonable suspicion. The proposal to extend the time of detention before judicial intervention must, therefore, be contemplating detention without reasonable suspicion. The proposal must be premised on the fact that there will be no reasonable causes for the detention and hence no justification to place before the Resident Magistrate to support/justify the deprivation of liberty.
Those of us who have been exposed to the operation of the criminal justice system, particularly at the Resident Magistrate's level, know that detention in breach of the law is not unusual. Some years ago I handled two cases within months of each other. Each involved a situation in which the accused was detained and not brought before the court as soon as reasonably practicable. In each I sought habeas corpus which the police frustrated by moving the accused to different locations and by absenting themselves when the magistrate sought to have them attend court.
Concequences of changing the law
One individual, who was a prominent businessman charged with conspiracy to export ganja, was bailed the following day not by order of the court but because alternative arrangements were made; the other, someone's gardener, whom I represented pro bono, ended up spending some three to four weeks in lockup. Both men, I should add, were eventually acquitted of all charges. This experience is not unique and, practitioners will tell you, is commonplace. The fact is that to change the law in the manner the prime minister is proposing is to legitimate the hitherto illegal conduct of the police. Need I remind the prime minister that those illegal detentions did not stop or reduce the level of crime?
Oppression and injustice create alienation, bitterness and resentment.
These characteristics appear not only in the person detained (and therefore punished) without a fair or any trial but also (and moreso) in their friends and relatives and their children. The feeling that because of their status in life or their address in Jamaica they cannot share in the good of society creates raw material for further violence and crime. In any event, the don who is detained for six weeks without reasonable cause and without being charged with a crime and who is then released returns as a conqueror that has defeated the forces of law and order.
David G. Batts is an attorney-at-law
