The Government has signalled that it will be reinstating states of emergency (SOEs) at the earliest opportunity, with the opening of the debate to amend the Emergency Measures Act in the House of Representatives on Wednesday.
Minister of National Security, Dr Horace Chang, in his contribution to the debate, said Jamaica is in a “security emergency”.
“At what point do we, as a society, concede that the level of violent crimes has attained public emergency status?” Chang, who is also deputy prime minister, asked.
He highlighted that the regional average for murders is 17.2 per 100,000 and the world average 6.1 per 100,000.
“At the end of 2017, the murder rate in the parish of St James was 186.5 per 100,000,” the security minister noted.
He highlighted further the murder rates within the Area Four police division in 2020: Kingston Eastern had 77 per 100, 000; there were 197.3 per 100,000 in Kingston Central; 172.8 per 100,000 in Kingston Western; 77 per 100,000 in St Andrew South; and 78.5 per 100, 000 in St Andrew Central.
“If these murder rates do not signal a security emergency that warrants an emergency security response, then at what point do we accept that we are in an emergency?” Chang asked.
He noted that the Government has, for some time, been engaging in these discussions and has been asked to justify utilising emergency security response in what can only be described as a “violent crime disaster”.
Chang pointed to the National Consensus on Crime document that was signed off on by the Government, Opposition and relevant stakeholders, including civil society, academia and the private sector, last year. The security minister reminded that it was considered and agreed that there are circumstances in which the use of emergency security response would be appropriate and necessary.
According to the document, the parties agreed that: “We will support the use of the military, as permitted by law, in geographic areas where the homicide rate is above 32 per 100,000 (that is two times the regional average), where the JCF determines it is incapable of controlling this violence with their current resources and capability, and the commissioner of police along with the chief of staff of the Jamaica Defense Force agreeing that it is necessary”.
Taking a swipe at the Opposition, Chang said “32 per 100,000, which exceeds the regional average, was the benchmark agreed by all stakeholders, and yet, with the murder rates as they are now, the Opposition wishes to debate whether or not we are, in fact, experiencing a security emergency”.
The SOEs that had been in place in several parishes were ended on August 17 last year, one day before Nomination Day activities for the September 3 general election. After it returned to office, the Government was unable to reinstate the emergency measure — which it had been using as its main crime-fighting tool since 2018 — following a major ruling by the Supreme Court in September 2020. The ruling found that the protracted detention of five men under the SOE was unlawful.
The five men — Nicholas Heath, Courtney Hall, Gavin Nobel, Courtney Thompson, and Everton Douglas — had challenged the legality of their detention in July 2020.
The men were held in custody for more than one year in some instances, without being charged for any offence, and their attorneys argued that this was unlawful and represented a breach of their constitutional rights.
Court documents revealed that Heath was held in custody for 361 days, Hall for 395 days, Noble for 431 days, Thompson for 365 days, and Douglas for 177 days.
In a 64-page judgement, Justice Bertram Morrison stated that the detention of the men “is quite remarkable, having regard to the fact that none of them have been charged for any offence in law”.
Morrison stated, among other things, that the detention orders under the SOEs issued by the national security minister were also unlawful. The reason was that, the use of the orders to detain the men for criminal cases without proper review breached the doctrine of separation of powers.
On Wednesday Chang brushed aside criticism about people being held indefinitely.
“I have heard the concerns regarding mass detention of citizens, but that has not been the case. Upon ending the states of public emergency in August 2020, the police had 240 persons in custody. About 50 per cent of them were charged and the others released. Many of those released have been contributing to the inter-gang violence,” said Chang
“The fact is that the most volatile communities require an emergency security response to clear the space ahead of bringing in the social and infrastructural redevelopment activities,” the minister argued.
The amendment bill was piloted by Justice Minister Delroy Chuck, who outlined that Clause 2 of the principal Act was being amended to include a definition for a “period of public disaster”, which would reflect a similar definition in the section of the Charter of Fundamental Rights and Freedoms of the Constitution.
Chuck outlined that the penalty provisions were also being amended to include a new provision that will give the relevant minister the power to change the penalties by order, subject to affirmative action.
The justice minister also noted that the amendments should have been made in 2013 when the Charter was enacted but could not say why this was not done.
“I cannot explain the omission, however, since the courts have recently pointed it out, we have taken these steps to comply,” he said.
As far as Chang is concerned, “SOEs save lives”.
“This Government has been utilising a combination [of] different security measures to respond to the crime situation in Jamaica. In some instances, we will require and utilise emergency security measures in order to cauterise the killing and save lives. Similarly, we continue to prioritise social investment for sustainable crime reduction and social transformation,” said Chang.