Bert Samuels | After the SOEs, what next?
Against the backdrop of Jamaica having one of the highest crime rates, I have detected that the scourge of crime here has been diagnosed as being as a consequence of the freedoms we enjoy. The view held in some quarters is that should we give up some of our rights for an undetermined period of time, we will reduce crime substantially.
To examine this viewpoint, we cannot overlook that, beginning less than 200 years ago, we evolved from a system of governance described as one of the worst examples of man's mistreatment of man. Justice Batts was forced to weigh the scales between the high crime rate and the freedoms enjoyed by our people in the 2014 'David Chin' case. He began by lamenting the fact that crime is high and threatens to overwhelm the security forces and our national institutions.
Despite his recognition of that chilling reality, he reflected on the fact that the constitutional rights enjoyed by our citizens "were the result of a history of struggle and sacrifice", acknowledging that it is that historical context which ought to dictate how we treat with those hard-fought-for rights today.
Indeed, in the leading constitutional case of Hinds v Attorney General, the Privy Council was careful to declare that the fundamental rights and freedoms set out our Constitution "impose a fetter on the exercise by the legislature, the executive and the judiciary of the plentitude of their respective powers". It went further to boldly state that "A breach of a constitutional restriction is not excused by the good intentions with which the legislative power has been exceeded by the particular law". Hence, the courts are not concerned with the expediency of the declaration of a state of emergency, if its declaration and workings lack constitutionality and operate to trample on our fundamental rights.
The circumstances that justify us being left unprotected by the suspension of our fundamental rights to liberty and freedom can only be rationalised by using the test that such circumstances are 'reasonably necessary in a free and democratic society'. In short, the taking away of our rights must be short-lived and only warranted in situations of unquestionable emergency.
NOT TO RESTRAIN
Patrick Henry's solemn reminder is most applicable here, "The constitution is not an instrument to restrain the people; it is an instrument for the people to restrain the Government." The powers given to the State during a state of emergency (SOE) are to arrest a problem, to abate its effects, and cauterise its growth. Thereafter, long-term measures must be employed, during which time our suspended rights are restored. Also, where other measures available to the State are capable of addressing an issue, no justification can be given for the use of an SOE.
The high rate of crime, which led to the declaration of an SOE, did not happen upon us like an earthquake or an unpredictable hurricane. The high crime rate is man-made and has increasingly infected us by reason years of neglecting to treat and demolish crime-breeding sites. It is one thing to declare an SOE, but the more important follow-up question must be - when it has expired, what next?
There is a feeling that our rights are being insisted on by the liberal Left, who have no interest in securing our safety from the terror of criminals. Many of these cynics need to remind themselves that, once you are a driver on our roads, you are at risk of being held as a defendant in our criminal courts in a case of causing death by dangerous driving. All my middle class clients who have found themselves in the dock on trial in these matters have all been keen on seeing that they are arrested, detained, and tried with full adherence to their rights under the Constitution.
We should never be that selective and selfish where we choose to insist on adherence to our rights only when we are directly affected, but prepared to support the surrender of the rights of others during an unending SOE.
We must be vigilant that where it is abundantly necessary and we do give up our rights, they must be returned with alacrity. We must now do the research, employ intelligent policing, insist on a fulsome applicability of the rules that no man is beyond the reach of the law.