Right Steps & Poui Trees


6 Comments

Body-Worn Cameras: A Secret Transparency Tool?

I remain concerned that to date the public has no idea what protocols govern the use of body-worn cameras  by police or soldiers in Jamaica, although these cameras are now being used by the police here. Body-worn cameras are widely regarded as a tool that may enhance accountability and transparency in policing, bringing an additional source of information about interactions between the police and the public. Inadequate protocols governing their use can, however, completely undermine any benefit to be derived from the wearing of such cameras. How can the Jamaican public know if the protocols governing use of body-worn cameras here are adequate, if we don’t know what those protocols are?

Zones of Special Operations (ZOSO) Act & Body-Worn Cameras

The recently passed Law Reform (Zones of Special Operations)(Special Security and Community Development Measures) Act, 2017 makes provision for the wearing of body-worn cameras by members of the Joint Forces – police and soldiers – within declared special zones.

Section 19(1) of the Act says:Zones of Special Operations Section 19 1

Section 19(2) of the Act requires the establishment of protocols and procedures for the use of the cameras, setting out some of the matters that may be dealt with in the protocols and procedures.Zones of Special Operations Act Section 19 2 AZones of Special Operations Act Section 19 2 B

 

Prime Minister Holness’ Commitment

Last week I was able to put a question about the current status of these required protocols to Prime Minister Andrew Holness, via a tweet to Cliff Hughes during his  Online programme on Nationwide News Network. The Prime Minister was the guest on the weekly Ask The OPM segment of Hughes’ programme and was fielding questions by phone & social media. I asked:SG tweet 19-9-17 Hughes PM body cameras

Hughes asked the questions and PM Holness answered:

“The protocols are established but we have a resource challenge. So the police do have body cameras. We have still…we have identified a supplier and we need to outfit the military with cameras and that is being done. As I said earlier, this is a proof of concept and much learning is taking place. So all the protocols that were established will…we will review them to see how they actually work on the ground, but by the time the second zone is around, we should have final protocols. We’ll share them with the public; there is nothing secret about the ZOSO and we should be able to outfit all key personnel… operational personnel with body cameras.” (Transcribed from recording, Cliff Hughes Online, Nationwide News Network, September 19, 2017)

I am glad for the Prime Minister’s commitments that protocols have been established, that they will be finalised before a second zone is declared and that they will be made public. He didn’t say, however, whether the protocols have been shared with INDECOM (the Independent Commission of Investigations) and, at this point, we have no clear timelines for the things committed.

 

Police and body-worn cameras prior to ZOSO

The wearing of body-worn cameras by members of the Jamaica Constabulary Force (JCF) didn’t begin with the passage of the ZOSO Act or the declaration of the first Zone. Body-worn cameras have been recommended and discussed for many years in various quarters, including the government, civil society, international bodies and the JCF itself. In recent years, steps were taken to start the process within the JCF.

In 2014, then Minister of National Security Peter Bunting announced that select police units would begin to wear body cameras and “noted that a protocol [would] be established, making it mandatory for the officers to engage the cameras once they [were] going on an operation.”

 

In August 2016,  there was an official launch of the body-worn camera project at the Office of the Commissioner of Police. Then Commissioner Carl Williams said: “This is a significant step on the road to improving our human rights record and ultimately, public trust. As we accept these body-worn cameras, I cannot help but underscore the remarkable stimulus that they provide for Police reform, and conformity by suspects. These devices will provide greater transparency, build public trust and provide evidence against false accusations.” Minister of National Security Robert Montague “stated that these cameras [would] aid in significantly improving the trust between members of the Force and the public.”

In February this year, the JCF announced that some police had actually started wearing the provided body cameras.

At this point, INDECOM indicated its concern “that the JCF [had] not yet advised INDECOM as to the proposed procedures and protocols that [would] govern the use of the equipment, collection and storage of data, and subsequent viewing of the footage.” (INDECOM Press Release 21-2-17) In a discussion on Nationwide News Network the following morning, Superintendent Stephanie Lindsay, head of the Constabulary Communications Unit, responded to INDECOM’s concerns saying that “We have a protocol that guides the operation of these cameras internally; it is not something that we would be discussing externally.” It is astounding that the JCF would consider it appropriate not to share the protocols governing the operation of body cameras with the independent oversight body mandated to investigate fatal shootings and allegations of abuse by the police. At the time of INDECOM’s May 26, 2017 press conference, they had still not seen the JCF’s protocols.

Given the approach of the JCF regarding INDECOM, it is hardly surprising that the JCF’s protocols haven’t been made public.

Protocols And Procedures

I have wondered whether the protocols and procedures governing the use of body-worn cameras within the declared special Zones would differ from those governing their use outside of the Zones. Indeed, I do not think that it is satisfactory that the drafting of such protocols should be left to the Heads of the Army and Police Force, with no requirement for consultation with any other body, INDECOM or the Office of the Public Defender, for example.

In a Twitter thread about body-worn cameras (yes, I do tweet a lot), I asked the following question and got a reply from Commissioner of Police Quallo:SG tweet 8-9-17 body camera protocols

COP Quallo tweet 10-9-17 body cameras protocols(*SOP = Standard Operation Procedure)

Finally, while the assurances of PM Holness are welcome, until the protocols are actually made public, they may be a comfort to a fool.

  • We do not know if the cameras already in use – since the declaration of the first Zone, since earlier this year (or before?) – have captured any footage relevant to any fatal shooting by the police or any alleged instance of abuse.
  • We do not know when cameras should be turned on or off and what sanctions there are for not complying with this.
  • We do not know if footage has been safely stored for the record or has been destroyed intentionally or inadvertently.
  • We do not know how long video is stored for or  who has access to such footage and under what circumstances? INDECOM? The police or soldiers involved in an incident? Lawyers – either for an accused person or the family of someone killed by the police or an involved policeman? Journalists? The public?
  • We know nothing about what has governed the use of the body-worn cameras to date and any video footage that has already been recorded.
  • Etc…

If the public doesn’t know what the protocols and procedures are, how can we know if they are adequate? And if we don’t know whether the protocols and procedures are adequate, how can the use of body cameras build trust?

Body-worn cameras can’t be a secret tool of transparency and accountability.

Related Post

350 Words or Less: Police Using Body Cameras, But What Protocol Is Regulating Their Use?

 

 

 

Advertisements


Making Haste: Joint Select Committee & Special Zones of Operations Act

This afternoon (June 13, 2017), the Joint Select Committee of Parliament considering The Law Reform (Zones of Special Operations) (Special Security and Community Development Measures) Act, 2017 had its first sitting. It was a short, preliminary meeting primarily intended to set out how the Committee will proceed.

Delroy Chuck 2Minister of Justice Delroy Chuck is chairing the Committee and reminded that the Bill had been tabled in the House by Prime Minister Holness during his Budget Debate presentation on March 21, 2017. He noted that this Bill is one of the measures intended to deal with the high level of violent crime in the country and made reference to the quadruple murder that had taken place in the parish of Hanover this morning. He indicated that the Prime Minister had asked that the Committee complete its deliberations by the end of June. This means that the Committee has about two weeks in which to conduct its process and report back to Parliament; by the first week in July, at the latest, Minister Chuck said.

The Committee has asked that advertisements be placed in the media this week, inviting individuals and organizations to make written submissions on the Bill to Parliament, with a possible deadline for submission by next week Tuesday.  They will also write to a number of specific organizations inviting them to make submissions; among those mentioned were the Jamaica Bar Association, the Advocates Association, the Public Defender, Jamaicans for Justice, the Norman Manley Law School and the Faculty of Law at the University of Technology. Individuals and organizations which make written submissions may be asked to make presentations in the Chamber, which will need to take place next week or the week after that.

Dates for three meetings of the Committee were set today, though these may change, as sometimes happens:

  • Wednesday, June 21 – 9 a.m.
  • Tuesday, June 27 – 10 a.m.
  • Wednesday, June 28 – 2 p.m.

It is hoped that all contributions can be concluded by the end of these three meetings, after which the Committee will do a clause-by-clause review of the Bill before finalising their report to Parliament.

Minster Chuck said that Attorney General Marlene Malahoo Forte will be attending the meetings of the Committee and the next meeting will begin with the Attorney General giving an outline of the Bill. He also said that the National Security Advisor and representatives of the Jamaica Constabulary Force and Jamaica Defence Force will be invited to attend the meetings.

I am not sure of the full membership of the Joint Select Committee, but present today were MPs Marisa Dalrymple-Philibert, Evon Redman and Floyd Green and Senator Pearnel Charles, Jr. Apologies were tendered for MP Peter Bunting and Senators Mark Golding and Ransford Braham. (Marlene Malahoo Forte was present in her capacity as Attorney General, from Minister Chuck’s comments.)

The Committee is attempting to complete its work in a very short period, with very limited notice to the public for submissions, which may jeopardize the “closer scrutiny of the Parliament in a joint select committee” contemplated by the Prime Minister when he tabled the Bill.

Previous blog post in which I raised questions & concerns about the Bill: Yes, You Do Get to Ask Questions About the Zones of Special Operations Act


6 Comments

Nearly A Year Later: Time for Western Kingston Commission of Enquiry Recommendations Update

Next week will be seven years since the Jamaica Defence Force (JDF) and the Jamaica Constabulary Force (JCF) joint operation in Western Kingston which resulted in the death of more than 70 people. Next month will be a year since the report of the Western Kingston Commission of Enquiry was tabled in Parliament and made public. It is certainly time for the country to get a full update on the status of the recommendations made in the report.

COE report cover blog pic

This is one of the problems with the Commission of Enquiry process. An Enquiry takes place and at the end of the process, strong and pertinent recommendations are sometimes made. At that point, another process starts or should start, but there is no formal requirement ensuring that next phase. There should be a system whereby the government is required to outline publicly which of the recommendations it has accepted, what steps it intends to take towards implementation and the timelines associated with that implementation. There should also be a formal process whereby the government is required to give periodic official public updates on the progress of that implementation, perhaps through scheduled reports to Parliament. This is not a new problem and contributes in part to the widely held belief that Commissions of Enquiry are a waste of time and money, as nothing ever comes of them.

Delroy Chuck MOJThe Minister of Justice, Delroy Chuck has attempted to move in that direction, having given some updates from time to time in Parliament and otherwise, updates about the setting up of a Cabinet Committee, the selection of the Chair of the Compensation Committee and the start of the Committee’s work, and the intention of the Government to apologise, for example. There have been statements by the JDF and the JCF indicating that they were working on some of the recommendations that applied to them. But this is an ad hoc process, and though things may well have progressed beyond what the public is aware of, there has been no formal, predictable structure for any updates.

In his Budget Debate presentation in Parliament on March 21, 2017, Prime Minister Andrew Holness committed to apologising to victims of the Tivoli operation when he said:

The wrongs of the past must be acknowledged and an apology offered to the victims of state-inflicted violence as recommended by constituted review bodies. On behalf of the Jamaican State and in my capacity as Prime Minister I will make the apology in Parliament to victims of the Tivoli Incursion and the Coral Gardens Incident.

PM Holness 2017 Budget DebateThe Prime Minister has made the apology for Coral Gardens, but hasn’t yet apologised for the abuses during the operation in Western Kingston and no date has been given for when he will. He made no other specific reference to the Commission’s recommendations during his presentation. Additionally, neither Minister Chuck nor Minister of National Security Robert Montague made specific reference to the Commission’s recommendations during their recent Sectoral Debate presentations or used the occasion to give a specific update on progress with implementation of the recommendations.  Also, I am not aware of any comprehensive public updates from the JDF and JCF after their initial responses to the Commission’s report.

I may well have missed some updates that have been given in Parliament or elsewhere, and I am sure that I could find additional information if I made Access to Information requests to various government ministries and bodies. I could also probably find additional information by searching the Hansard record for relevant dates. But the information ought to be more easily accessible and we should have some prescribed timelines for updates. I would like to suggest that sometime in June, twelve months after the Commission’s report was tabled in Parliament, would be a good time for a comprehensive update on what progress has been made on each of the Commission’s recommendations. The update should clearly state whether any progress has been made, the nature of that progress and what remains to be done, including relevant timelines. Instances in which no further action is planned should also be clearly stated. And as these updates are being contemplated and given, it is important to acknowledge again that this isn’t simply a paper exercise. It is about real people who were directly or indirectly impacted by the events, about a government giving account to its people, about preventing such occurrences happening again and about a process of justice and healing.

Recommendations of the Western Kingston Commission of Enquiry

Below I will set out briefly the recommendations made in Chapter 15 of the Report, for which progress updates need to be given.

UPDATE NEEDED REGARDING STATUS OF IMPLENTATION OF RECOMMENDATIONS INCLUDED IN REPORT OF WESTERN KINGSTON COMMISSION OF ENQUIRY CONCLUDED IN 2016
SECTION OF CHAPTER 15 RECOMMENDATIONS COMMENTS
INTRODUCTION 15.1 The Commission indicates that in other Chapters in the report they “have recommended that further investigations be carried out as a matter of justice and with a view to preventing a recurrence of similar events.” The bodies responsible for the further investigations, such as the JCF and INDECOM, should give an update on the status of such investigations.
PART 1-REDRESS

1. APOLOGY

 

15.7 “…we recommend that the GoJ apologize in Parliament to the people of West Kingston and Jamaica as a whole for the excesses of the security forces during the operation. The Government is, in the last resort, responsible for the conduct of its security forces.” The Prime Minister has indicated in Parliament that he will make this apology. He should indicate the date on which he will apologise and carry this out.
2. COUNSELLING FOR TRAUMATISED PERSONS

 

 

15.8 “…we are satisfied that there needs to be a programme of continuing counselling for some of the residents including children.”

 

15.9 “We therefore recommend that this matter be pursued by the appropriate Ministry.”

The Government should indicate which Ministry is responsible for implementing this recommendation, what programme is in place and what counselling has been and will be provided.
3. COMPENSATION FOR VICTIMS 15.12 “…we recommend the establishment of a Compensation Committee with two broad mandates…”

15.13 “We respectfully further recommend that the Compensation Committee be chaired by a retired judge or senior attorney-atlaw…and the Committee should be directed to complete its work within 9 months.”

The Chair of the Compensation Committee could give an indication of the progress of the Committee in its work and should indicate whether it will complete its work within the recommended 9-month period.
4. WAIVER OF LIMITATION PERIOD 15.14 The Commission refers to the legal restrictions regarding the timeframe in which claims against the State can be brought, 3 years in some instances and 6 years in others.

 

15.15 “We therefore recommend that the State waive its strict legal rights to all claims and agree to settle compensation on an ex gratia basis in respect of claims brought by aggrieved persons, personal representatives and/or near relations and/or dependents of deceased persons.”

The Government needs to confirm its position regarding the recommended waiver.

 

The Office of the Public Defender should give an update regarding its participation as referenced in 15.15

PART 2 -PREVENTION

 

15.16 The Commission gives a non-exhaustive list of measures that would prevent similar events in the future.
1. ADMINISTRATIVE REVIEWS 15.17 “Consistent with our findings with regard to the conduct of certain officers and other ranks of the JCF and JDF, we recommend that both forces undertake administrative reviews of the conduct of the named officers….We note that since May 2010, some of these officers have been promoted – in some cases to very senior ranks.”

 

15.18 “We recommend that the serving police officers against whom adverse findings have been made be relieved of any operational commands that they may hold and that they be prohibited from serving in any special operations units.”

 

15.19 The Commission indicated the allegations of involvement of members of the Mobile Reserve in extra-judicial killings.

 

15.20 “Where the accusations of extra-judicial killings on the part of the security forces were found by this Commission to be credible, and where persons were identified as being in dereliction of duty or were administratively or operationally incompetent, we recommend that these persons should never again be allowed to lead or otherwise participate in internal security operations.”

 

15.21 “We further recommend that the Mobile Reserve be subjected to special external oversight arrangements.”

The JCF and JDF should give an update on the status of the recommended administrative reviews of the named officers.

 

The JCF should give an update regarding the recommendation to relieve certain officers of operational command.

 

The Government should give an update regarding the recommended special external oversight arrangements for Mobile Reserve.

2. USE OF WEAPONS SYSTEMS 15.22 The Commission pointed to the need for “policies that guide the selection of weapons systems that may be used in internal security operations….We strongly recommend that a group of competent persons be tasked to draft such a policy.”

 

Future use of Mortars and other Indirect Fire Weapons

15.24 “We therefore recommend that, in future, the leadership of the JDF pay careful regard to contemporary best practice and learning in relation to the use of weapons of indirect fire. Consistent with international humanitarian law, the use of these weapons in built-up areas should be prohibited.”

 

 

The Government should indicate the status of drafting policies regarding selection of weapons systems for internal security operations.

 

The JDF should indicate the status of its review of future use of mortars and other indirect fire weapons.

3. IMPROVING LEGAL AND ADMINISTRATIVE ACCOUNTABILITY FOR USE OF FORCE 15.27 “…we recommend the following firearm related systems and procedures for favourable consideration by the GoJ:” These are set out in (a) – (e).

 

 

 

 

 

Use of Masks or Other Concealment Gear

15.28 “…we recommend that the use of masks and/or other concealment gear be limited to special cases when the identities of particular officers and units are best protected by these means. We also recommend that where masks and other concealment gear are used by entire units or groups, this be done only with the approval of the CDS and CoP for the JDF and JCF respectively….Moreover, we recommend that in all cases, there be reliable and verifiable means of internally identifying all individuals for whom approval is given to wear masks and or other concealment gear….

 

Body Worn Cameras

15.32 “This recommendation should also apply to soldiers who participate in special policing operations.”

15.33 The Commission recommends the use of body worn cameras by the police. “We therefore recommend the introduction of this type of technology.”

 

 

The Government should give an update regarding the status of the recommendations to do with firearm related systems and procedures; for several of these, the JCF’s update would be relevant.

 

 

The government should give an update regarding the policy regarding wearing of masks or other concealment gear; the JDF and JCF updates would be relevant here.

 

 

 

 

 

 

 

 

 

The Government should give an update regarding the implementation of the recommendation for the use of body worn cameras by the JCF and JDF. The JCF update would be relevant here.

 

Of particular note is the status of the protocols to govern use of body worn cameras. Body worn cameras are now being used by some members of the JCF. Earlier this year, INDECOM indicated that at that time it did not know what the protocols were; the public also does not know what the protocols are.

4. ACCOUNTABILITY IN JOINT OPERATIONS – A TRANSITION COMMAND PROTOCOL 15.34 “We recommend that the JDF and JCF fashion a transition command protocol that would be applied in instances of large-scale joint internal security operations.” The JDF and JCF should give an update regarding the status of this recommended protocol.
5. STRENGTHEN OVERSIGHT OF THE JCF 15.35 “We recommend that they [INDECOM, PCOA & PSC] be strengthened in terms of their capacities to fulfill their functions effectively.” The Government should give an update regarding measures taken to strengthen the capacities of INDECOM, the PCOA & the PSC.
6. OVERSIGHT OF THE JDF’S INVOLVEMENT IN POLICING OPERATIONS 15.36 “…to the extent that the JDF has become routinely involved in policing and is required to play a major role in internal security operations, it is our view that this aspect of their work, that is, their policing work, should be subjected to a greater measure of external civilian oversight.” The Government should give an update regarding this recommendation to increase external civilian oversight of the JDF’s policing work . The JDF’s update would be relevant in this regard.
7. TACKLING THE GARRISON PHENOMENON 15.41 The Commission noted the establishment of a police post in Tivoli Gardens after May 24, 2010 and recommended “that this approach be replicated in those garrison constituencies where none presently exists.”

 

 

15.42 “In addition, since “de-garrisonisation” ultimately requires consensus among political parties, we recommend

a. A bi-partisan approach leading to agreement towards the dismantling of garrison communities facilitated by an independent third party.

b. A road map for “de-garrisonisation” should be handed over to an independent body similarly structured in composition to the Electoral Commission, to develop the details of the process.

 

15.43 In relation to “de-garrisonisation”, the Commission made several recommendations to do with allocation of resources, set out in (i) – (iii).

 

The Government should give an update regarding the recommendation to establish police posts in garrison constituencies which did not have one. The JCF update would be relevant in this regard.

 

The Government should give updates about the implementation of the recommendations regarding the process and the allocation of resources relating to “de-garrisonisation”.

8. ACTION RECOMMENDATIONS OF ECLAC 15.45 The Commission endorsed the recommendations made by ECLAC in its report on the impact of the May 2010 events in Jamaica.

 

15.46 The Commission also “endorsed the main conclusion of the report that a medium to long-term programme of rehabilitation and revitalisation of the affected communities should be developed in order to integrate those communities into Jamaican society.”

 

15.47 “As part of a programme for inner city renewal and development we recommend that the Government should vigorously pursue the private sector’s assistance by inviting them to embrace the Urban Renewal (Tax Relief) Act.”

The Government should give an update regarding the recommendations to do with “[s]ustainable development… in addressing the problems in the low-income urban areas.”
9. REVIEW AND REFORM OF THE CRIMINAL JUSTICE SYSTEM 15.48 “We recommend that there should be a thorough-going holistic review of the existing criminal justice system followed thereafter by appropriate administrative and legislative action.” The Government should give an update regarding this recommended review.
10. AMENDMENT OF EXTRADITION ACT 15.50 “We recommend that section 8 of the Extradition Act be amended to make it mandatory that the Minister make a decision on authority to proceed within a finite time.”

 

15.51 The Commission made recommendations regarding not publicizing extradition requests and the Attorney General’s intention to sign the Authority to Proceed. Also recommended AG immediately informing the Commissioner of Police upon its execution.

The government should give an update regarding the recommended amendment to the Extradition Act.

 

 


4 Comments

Does the National Identification & Registration Act Go Too Far?

This is the second weekend in a row that I have spent some time reading through a Bill recently tabled in the Parliament. This time it was the National Identification and Registration Act, 2017, tabled by Prime Minister Holness during his Budget Debate contribution in March. NIDS Bill title

In tabling the Bill, PM Holness said:

This Bill is consistent with a rights-based approach to ensuring that every citizen of Jamaica can be identified and known to the state, so that their rights and entitlements can be preserved and planned for in advance. This will create a tremendous public good by reducing transaction time and cost.

Mr. Speaker, the Registrar General Department will be transformed into the National Identification and Registration Authority and will be responsible for implementing the project. Funding for the project is being negotiated through the IDB and a detailed work plan is already prepared. We expect to be piloting the project in September next year.

From Contribution to the 2017/18 Budget Debate by PM Andrew Holness

Having read through the Bill, I certainly think that it needs to be considered by a Joint Select Committee to benefit from “the closer scrutiny of the Parliament”, as PM Holness said in relation to the Law Reform (Zones of Special Operations) (Special Security and Community Development Measures) Act.

The Act will establish the National and Civil Identification Database and will empower the Government to collect a variety of biographic and biometric information about each citizen of Jamaica and other individuals who are ordinarily resident in Jamaica. The range of information is set out in the Third Schedule of the Act:

NIDS Bill data aNIDS Bill data bNIDS Bill data cNIDS Bill data d

This isn’t even the final list, as the definitions of both “biographic information” and “biometric information” in the Interpretation section of the Act allow for additional data to be included in the Regulations, by referring respectively to “and such other information as may be specified in the regulations” & “or such other biological attribute of the individual as may be specified in the regulations”. The Regulations referred to haven’t yet been drafted or made public, so there is no way of knowing at this point what they might include in the first instance or in the future. (In fact, in more than a dozen places in the Bill, further details are relegated to the Regulations, in some instances leaving me feeling that the country is being asked to sign a contract now and find out the details later. With the devil so often lying in the details, perhaps the Regulations need to be brought to Parliament alongside the Bill or the details need to be included in the Bill itself.)

It is also important to note that Section 58 of the Act gives the power to the designated Minister (who is the Prime Minister in this Act) to amend Schedules: NIDS Bill Section 58

So at some point in the future, a Prime Minister could decide to amend the Third Schedule to include DNA as one of the biometric identifiers the Government would have the power to collect from every Jamaican citizen for storage in the database.

But without going to future possibilities, a look at the existing list includes items that need to be deleted. For example, A 9. The religion of the individual. Why would it be necessary for the Jamaican Government to inquire into, collect, record and store in a permanent database the religion of every citizen of Jamaica? Other items among the biographical information need to be similarly questioned.

The biometric information is of particular concern, as one can hardly get more intrusive of a person’s privacy than to collect such data. Each of those items from A 22 – 33 needs to be carefully reconsidered. The Government will seek to reassure that the data will be secured and protected and only accessed under certain circumstances. I think it needs to be questioned whether by the simple fact of your being born in Jamaica, an act in which you have no choice whatsoever, the Government should have the power in law to collect all this biometric information from you.

There are other aspects of the Bill that need to be carefully considered and I plan to do further posts on this. At the core of the legislation, however, is the information the Government intends to collect about each citizen and so this is a good place to begin.

 

 

 


4 Comments

Yes, You Do Get to Ask Questions About the Zones of Special Operations Act

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.

Budget debate 21-3-17 Holness cLast 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.Law Reform Special Zones bill

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.Special Zones 1

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

Special Zones 2

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?

Special Zones 3

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:

Special Zones 4

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

Special Zones 5

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

Special Zones 6

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.

Regulations: 25

“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

Firearms Act

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


2 Comments

Crimes Committed by People on Bail: An Access to Information Story

Jamaica’s Access to Information (ATI) Act was passed in 2002 and I believe, despite some of the weaknesses which remain in its provisions, it is an extremely important and potentially powerful tool for members of the public.

The following objectives are stated in the legislation:ati-act-objectives

In addition to some problems with the legislation itself, there can be challenges to getting the requested information. Sometimes use of the Act goes smoothly; sometimes it does not. Here’s a recent and still ongoing experience of mine.

June 17, 2016

minister-montagueI heard a radio news report  about a speech that the Minister of National Security Robert Montague had given at a function the day before, in which he had made comments about people committing crimes while on bail and the need to make changes to the Bail Act because of this.

By email, I made the following request to the Ministry of National Security (MNS) under the provisions of the ATI Act:

I would like to make an ATI request for all data, reports, memos, correspondence, minutes, etc regarding people on bail who have allegedly committed further offences while on bail.

I heard Minister Montague on a clip on the news today giving some figures at an event yesterday, which I hope would be included in the information I am requesting.

I received this response from MNS:

This is to acknowledge receipt of your Access to Information Request, which will be processed and dealt with accordingly.

I heard nothing further for two months.

 August 18, 2016

I received an email from MNS:

I am hereby making the request for an extension of time to supply information regarding your requests, the request was dispatched for the attention of the respective party that would probably have such information in their possession. However, the information has not yet been provided to this office. Thank you

September 6, 2016

I sent the following response to MNS:

I note your request for an extension of time in providing the information I requested on June 17. However, given that this request was made 60 days since I made my request, I will be referring this to the Appeal Tribunal. 
I also note that no valid reason has been given for this delay.
That same day, I filed a request for an appeal before the ATI Appeal Tribunal.

September 9, 2016

I received the following from MNS:

This is to inform that your request was forwarded to the appropriate personnel/department to supply information with regards to your request. However, the information that you desire does not rest with this office and as such we do not have direct control for when the information is supplied in most instances. I regret the delay, however the information if available, will be forwarded as soon as it is obtained, thank you.

I replied to MNS:

If the information is not held by the Ministry of National Security, then my request ought to have been transferred to the relevant government ministry/agency and I should have been notified of that transfer. I haven’t been. If the information is held by the Ministry of National Security, in whichever office or section, the requirements of the ATI Act would apply.
I have made a request to the ATI Tribunal for an appeal regarding the Ministry’s failure to provide the information.

October 14, 2016

Following some intervention by the ATI Unit, I received the following email from MNS with a document attached:

Please find attached the information that was requested Re: “Persons on Bail Committing Additional Offences”. Apologies are extended for the delay in the conveying of this response.

jcf-bail-doc-coverA copy of the document (Jamaica Constabulary Force – Assessment – Impact on Serious Crimes by Persons on Bail – June 28, 2016) is availble here: jcf-assessment-on-serious-crimes-by-persons-on-bail-28-06-16

I sent the following response to MNS:

Thank you for your email and the attached document.
I am not satisfied, however, that this fulfills my request made on June 17, 2016 for:
“all data, reports, memos, correspondence, minutes, etc regarding people on bail who have allegedly committed further offences while on bail”
to which I added the following identifier:
“I heard Minister Montague on a clip on the news today giving some figures at an event yesterday, which I hope would be included in the information I am requesting.”
 
The single document provided is a JCF report dated June 28, 2016. Since this is subsequent to the date of my request and the date on which the Minister made his public statement, I must assume that further documentation resides with the Ministry of National Security.
If indeed it is the Ministry’s position that it holds no other “data, reports, memos, correspondence, minutes, etc” as per my request, then I would appreciate a definitive statement of this.

October 21, 2016

I have not yet had a response from MNS to my email sent on October 14 and my request before the Appeal Tribunal remains in place.

Restricting Bail Provisions & the Document Provided by MNS

The issue of passing or amending legislation to restrict access to bail beyond existing provisions is not a new one. Among the six anti-crime bills passed in 2010 were two amendments to the Bail Act, which were subsequently challenged in court and in 2011 were ruled unconstitutional and therefore void. (Nation, Adrian v The Director of Public Prosecutions and The Attorney General of Jamaica)

The issue was again raised this year when Prime Minister Andrew Holness stated the Government’s intention to amend the Bail Act during his Budget Debate presentation in Parliament on May 24. ag-mmf-5-7-16Minister Montague made his speech on June 16 (Jamaica Observer, 16/6/16)  and public discussion further intensified following Attorney General Marlene Malahoo Forte’s Sectoral Debate presentation on July 5, in which she stated

So, Mr Speaker, we are going to touch the Bail Act, again….We are going to make some radical changes. Right now, the sentiment is one of “no bail for murder, unless self defence arises on the Crown’s case and the likelihood of an acquittal is high’.

So four months after I began my ATI quest to get documents from the Ministry of National Security giving information about people on bail who have committed further offences while on bail – documents which might empirically ground the Government’s declared intention to amend the Bail Act – I have received one document, a six-page assessment by the Jamaica Constabulary Force. Only 3 of those pages deal with crimes committed by people on bail, and the information given is of a fairly cursory nature.

If this is the only document MNS has which deals with this topic, then it is frightening to think that this is what is being used to support a decision to amend the Bail Act.

If there are other documents held by MNS – or any other Ministry or public authority – then the MNS has failed in its duty to comply with the provisions of the Access to Information Act.

I await further communication from MNS or the hearing of my requested appeal before the ATI Appeal Tribunal to discover which of these two bleak possibilities is the case.

 


.#Matthew: Friday Morning Outlook From Jamaica

I went up on the roof this morning and the view is beautiful and peaceful, as it usually is. p1010350

Forecasts

matthew-met-service-release-30-9-16-5amThe current weather forecasts are, however, showing that Jamaica is increasingly likely to have a direct encounter with Hurricane Matthew. Our Met Service‘s 5am release says that “A Hurricane Watch may be required for Jamaica today.” A Hurricane Watch is usually issued 48 hours before tropical storm force winds are likely to be felt. Once we have that strength winds, it’s difficult to do any further preparations.

 

The National Hurricane Center’s (NHC) map at 8am EST (7am Jamaican time) forecasts that on Monday morning the eye of Hurricane Matthew is likely to be very near the eastern tip of Jamaica, and within the forecast cone a direct hit is quite likely. This can obviously change, but direct hit or not, we are in for severe weather, it seems. Here is the NHC 8:00am advisory.

 

matthew-nhc-map-30-9-16-8am

I don’t like what I am seeing on Weather Underground this morning, which forecasts Matthew as a category 3 hurricane when it affects Jamaica, and the computer models are clustering to show a likely direct hit.

wu-cone-30-9-16wu-computer-models-30-9-16

pm-tweet-30-9-16Jamaica Prepares

Prime Minster Andrew Holness held  an emergency meeting with Members of Parliament at the Office of the Prime Minister last night. He has posted an update on Twitter & Facebook, and if you scroll down on his Facebook page, there is a recording posted of the full meeting – Meeting on Hurricane Preparedness. This morning the newspapers have reports of that meeting.

Gleaner: Ready For Matthew – Gov’t Says It’s Prepared For Hurricane, Jamaicans Urged To Store Water

Jamaica Observer: J’cans urged to prepare for Hurricane Matthew

So, even as we keep an eye on the weather forecasts, it’s time to prepare.

I went through Hurricane Gilbert at this house, when it hit at category 3 strength in 1988, and I know that this house can stand a serious storm. But it was very frightening. I know what I need to do to prepare and am beginning to do it.  I hope we don’t have a direct hit; a major hurricane would cause devastating damage in Jamaica.