You are asked as a citizen to trust the Government and that trust is an important part of how a democracy works. But in a democracy, that trust is never expected to be blind or unquestioning; it is expected to be qualified and earned on an ongoing basis. Good governance is participatory, with opportunities for sharing of information and genuine consultation and feedback on decisions that will affect the lives of citizens.
Last week, during his contribution to the Budget Debate, Prime Minister Andrew Holness tabled a Bill aimed at legal provisions for dealing with the problem of crime and security in Jamaica.
The short title for the proposed legislation is The Law Reforms (Zones of Special Operations) (Special Security and Community Development Measures) Act, 2017 and the Bill can be found on Parliament’s website. (Click here.) PM Holness said the following about the Bill:
The referral to a Joint Select Committee will provide an opportunity for members of the public to hear more about the details of the Bill and to make written submissions to the Committee.
People are sometimes given the impression or make the assumption themselves that unless you are a legislator, a lawyer, an expert in the particular field, you are not entitled to express an opinion on an existing or proposed piece of legislation. We all benefit from the knowledge, expertise and opinions of legislators, lawyers and experts, but that does not mean that as a citizen you do not have the right to express concerns or ask questions about a piece of legislation that is likely to affect you, your family and community directly or indirectly. It is part of what citizens in a democracy are entitled (and expected) to do, part of how we participate other than by voting.
Over the weekend, I read through the Zones of Special Operations Bill, making notes of my initial thoughts, areas of concern or for clarification and questions. I’ve shared my notes below, as I continue to look at and follow the process regarding the Bill. The current provision is for the first review of the Act to take place within three years; often reviews are delayed and even when they take place and are reported on, recommendations for amendments can take years to be debated in Parliament. So it is necessary that the Bill be subject to closer scrutiny before passage.
Having read the Bill, I have some initial thoughts and comments on areas for question and clarification and possible concerns that arise.
One thing that would be very useful in evaluating the impact of the Bill would be a matrix setting out what new powers have been allocated and to whom and where existing powers have been repeated in this Bill.
Some areas to look at particularly:
- increased powers to JDF
- increased powers to JCF
- impact of the Bill on children
- impact on freedom of association
- impact on detention and bail
- provisions for use of body-worn cameras
- increased powers to Prime Minister
- potential for powers within Zones to influence attitudes & actions of security forces outside of Zones
- provisions for oversight & accountability of operations/actions within Zones (eg functioning of INDECOM within Zones)
- any others?
In assessing the Bill, one would need to look at the impact of the proposed Act on the fundamental rights and freedoms of citizens; the potential effectiveness of provisions in the Act; whether powers/provisions detailed within the Act already exist in law.
Comments on specific sections of the Bill
Memorandum of Objects and Reasons for the Act
In the Memorandum of Objects and Reasons for the Act, it is specifically stated that:
“This Act should not have the negative impact on Jamaica, which could likely occur if a declaration of a state of public emergency was made.”
This raises the question of whether the Act seeks to establish the conditions of a state of public emergency in specified geographical locations without the existing process/protection/Parliamentary oversight and the constitutional implications of this.
Additionally, the following is stated in the Memorandum of Objects and Reasons for the Act, which raises the need for clarity about any additional powers the Bill seeks to give members of the JCF and JDF and, as indicated here, the impact of these on the fundamental rights and freedoms of citizens. Is the balance an acceptable one? Consideration should be given to whether the powers granted here may influence (unintentionally?) the role/behavior of the police and military outside of any declared special zone or generally over the long term. Note the experience of the long-term impact on policing of the Suppression of Crime Act passed in the 1970s.
Objects of Act 3(a) – (g)
This section sets out the specific objects of the Act regarding the Zones of special operations. It would be useful to clarify which of the powers listed here already exist in law and which are new. If they already exist in law, what need for the Act?
Declaration of Zone 4 (1) – (5)
Note the increased powers being given to the Prime Minister (in Council) and to the Joint Command (as designated in 8(a)).
Note (4) The entire Island shall not be declared as a Zone. Is there any limitation as to the number of Zones or % of the Island that can be designated as a Zone at any one time?
Extension of period 5(1) – (3)
With the initial period of up to 60 days allowed in 4(1) and the two extensions of up to 60 days each allowed in 5(1) & (2), an area can be designated as a Zone of special operation for up to 180 days (6 months) before being brought to Parliament for a vote.
When brought to Parliament, 5(3) Any subsequent extension shall be subject to affirmative resolution of the House of Representatives.
Would there be a limit to the length of time of such further extensions? Would it be the 60 days as with the prior extensions? Would there be a limit to the number of times such extensions could be declared? Would there be any mechanism other than the courts for residents within a declared zone to challenge such extensions?
Statement to Parliament (6)
Within fourteen days of each extension the Minister shall make a statement to Parliament.
Does this requirement exist for the initial declaration also, or only for extensions?
This is aimed at some Parliamentary accountability, and perhaps oversight. How effective could/would it be?
Designation of Joint Command 8(1) – (5)
8(1) What exactly does “to be jointly in charge of operations within the Zone” mean?
8(2) What level of additional training is envisaged in “are additionally trained in human rights, the use of force and community development initiatives”?
8(3) Will the details of the Zones’ “written accountability and reporting system as specified by the National Security Council” be available for review by anyone else to assess the adequacy of the system? INDECOM? The public?
8(5) Any person who fails to comply with subsection (4) is liable to disciplinary action.
Note the reference to disciplinary action here and elsewhere in Bill. Clarity on who will be responsible for administering such disciplinary action. JCF & JDF each to their own members?
Suspension of operation or change of Joint Command: 10
Note power of PM (in Council).
Identification of members of Joint Force: 11
This will not be standard? Does “may be ascertained” include being ascertained by the public?
Concern here about ability of public to identify police and soldiers on operations, given the context of long-standing and ongoing concerns about wearing of masks/face-coverings and non-display/covering of numbers on uniforms. Note, for example, concerns and comments in Report of Tivoli Commission of Enquiry.
Concern for the safety of members of JCF & JDF is usually raised as the reason for concealing identity of some members on some operations. Unfortunately, there has been in the past lack of acknowledgement of this practice by the hierarchy of the JCF, certainly, and a sense that such concealment is not subject to specific and recorded approval. There has also been a failure in recording of presence of specific members who participate in operations and where they would be assigned at any particular time. This has resulted in inability to identify members who may have been involved in alleged abuses. Again, see concerns and comments in Report of Tivoli Commission of Enquiry.
Powers of Joint Command to establish cordons and impose curfews: 12(1) – (2)
Clarify how this varies current powers/process to establish cordons and impose curfews.
Note that (2) specifically grants to members of the JDF in Zones the powers of a constable.
Duration of cordon and curfew: 13
Check current duration allowed for cordons and curfews.
Search and seizure: 14
Clarify which of these powers already exist in law and which are new.
Of particular note are instances in which members of the JDF are being granted powers that they do not already have or would not have outside of Zones.
Arrest or detention: 16
This clause needs to be gone through clarifying any variance with existing law. Again, particular note needs to be made of any increase in powers granted to the JDF.
Review role of Justice of the Peace in this clause.
2(a) How is “unless the circumstances are such that the person should know” determined?
Persons held in custody: 17 (1) – (2)
Any changes to existing law?
17(2) What time period is meant by “forthwith” in “…and shall cause such person to be brought forthwith before a Justice of the Peace”?
Just noting that the provisions under this Act will affect all persons arrested or detained for any offence in these Zones, not just those persons or offences related to the high crime factors referred to in the Memorandum of Objects and Reasons.
Treatment of persons arrested or detained: 18 (1) – (7)
Review against existing law.
If adhered to in practice, 17(3) would be important. But would it be adhered to in practice?
Use of body-worn cameras: 19 (1) – (2)
This clause deals with the wearing of body-worn cameras in the Zones and (2) requires the following:
with 2(a) – (g) setting out some of the specifics to be included in the protocols and procedures.
The head of the JCF’s communications unit recently stated that there are internal protocols which guide the use of body-worn cameras by the JCF. At the time, the head of INDECOM stated that such protocols hadn’t been shared with INDECOM. I don’t know whether they have been shared with INDECOM subsequently. They certainly haven’t been shared with the public.
I would question why the establishment and review of protocols and procedures for use of body-worn cameras in these Zones would be left to the Chief of Defence Staff and the Commissioner of Police. Would protocols governing body-worn cameras within the Zones differ from those for use otherwise/generally? Wouldn’t it be better to have a standardized practice for the entire country? Will INDECOM be involved in the development and/or review of such protocols – general or within Zones – as set out in Bill? Will the public be entitled to know what these protocols and practices are?
Registration of weapons: 20
Why the qualifier? Would they be required to give reasons for such a decision? To whom?
Thinking generally about oversight for actions within the Zones.
Duty to disclose identity on request: 21(1) – (4)
Compare with existing law.
Note offence and punishment in 21(4).
Duty under law for the protection of children: 22
Consider any implications of this provision.
22 (a) Implications of this expansion of power to any/all members of JCF and JDF in a Zone. Too broad? Could intention be accomplished by referral to existing Attendance Officers?
Was this included in response to questions regarding under what law police in certain communities have exercised certain authority over children there?
Establishment of Social Intervention Committee: 23(1) – (2)
What resources will be available for the functioning of the Committees? Funds? Support staff? Office space? Etc?
Often the effectiveness of committees is hampered by lack of resources, even fairly basic ones.
Functions of Committee: 24(1) – (4)
Review the functions. Note 24(2) re TOR of Committees.
“The Minister may make regulations for the better carrying out ot the provisions and purposes of this Act.” Not “shall make regulations”? In past instances, the failure to pass accompanying regulations has hampered the proper implementation of an Act.
Review of Act by Parliamentary Committee: 26(1) – (2)
26(2) The first review not later than 3 years after declaration of first Zone.
First Schedule – Social Intervention Committee
Constitution of Committee: 1(a) – (u)
“The Committee shall be comprised of at least ten persons selected from among the following – “
Twenty-one people/categories of people are offered, from which at least ten are to be chosen. Of the twenty-one, seventeen are explicitly state/government representatives; two are explicitly community representatives; two – (g) and (u) – could be state/government or non-state/government. This seems to skew to composition of the Social Intervention Committees towards being predominantly state/government in composition.
Procedure and meetings: 5(1) – (7)
5(2) By what mechanism would the community be able to make a call for a meeting of the committee? Would it be dependent on getting the requisite number of committee members to support such a call? Or would there be some other mechanism?
5(5) Would minutes be available to public routinely? Or dependent on ATI requests?
Second Schedule – Amendment of other Enactments
General need to review and be clear on all the changes to existing laws being made here.
Constabulary Force Act
Look at specifics of changes being proposed.
Criminal Justice (Suppression of Criminal Organization) Act
The three New Parts to be inserted into the existing Act need to be reviewed for the implications of the provisions contained in them. Provisions regarding interim control orders and control orders are of particular note.
1A – Declaration of Criminal Organization,
1B – Control of Members of Criminal Organizations and
1C – Registers of Criminal Organization and Controlled Members of Criminal Organizations
Look at the New Sections – 42A, 42B and 42C – to be inserted in existing Act. Implications?
Some other laws to consider in reviewing this Bill
The Constitution of Jamaica
The Emergency Powers Act
The Constabulary Force Act
The Defence Act
The Education Act
The Child Care and Protection Act
Criminal Justice (Suppression of Criminal Organization) Act
The Firearms Act