The Constitutional Court on Friday awarded approximately $18 million in damages to Roshaine Clarke, the 29-year-old taxi operator who sued the Attorney General for wrongful detention under the state of emergency (SOE) that was declared for the parish of St James in January 2018.
The court, in its landmark decision, also declared as unconstitutional, the Emergency Powers Regulations governing SOEs.
The full court comprised Justices Chester Stamp, Anne-Marie Nembhard and Tara Carr. They were asked to consider whether some of the Emergency Powers Regulations infringed or violated the Charter of Fundamental Rights and Freedoms of the Constitution, and if so, whether these breaches were reasonably justified for achieving the purpose of the SOE in St James.
“Additionally, the court had to consider and determine whether any of Mr Clarke’s constitutional rights had been infringed or violated, and if so, whether he’s entitled to redress,” said Justice Stamp as he read from the summary of the decision.
Continuing, Stamp said: “In disposing of the case, the court held and declared the Emergency Powers Regulations Sections 22 and 32…in respect to the fundamental rights of freedom of movement, Regulations 30, 33 and 38, in respect to the fundamental right to freedom and liberty, breached the Charter of Fundamental Rights and Freedoms of the Constitution”.
In declaring the regulations unconstitutional, the Court cited that “They gave the authorities unduly unfettered power to abrogate the fundamental rights of a wide class of persons in society without evidence establishing that they were reasonably justified for achieving the purposes of the state of emergency”.
The court also found and held that: “Mr Clarke’s fundamental rights and freedoms under the Constitution, in particular his right to freedom and liberty, his right to be informed of the reason for his detention as soon as is reasonably practicable, and his right to be brought forthwith, or as soon as is reasonably practicably before an officer authorised by law or a court had been violated and that he’s entitled to damages as redress for these violations”.
It awarded Clarke a total $17,862,000 inclusive of compensatory, vindicatory and aggravated damages. He was detained for seven months, during which time he suffered from haemorrhoids and was denied medical care. He missed two surgery appointments while he was being held by the State.
According to the court, “the case raises issues of paramount national importance in an area where the fundamental rights and freedoms of individuals in Jamaica traverse the measures adopted by the State to protect the society in general.”