Covid Reflections: Time for one of Dr Bisasor-McKenzie or Dr Webster-Kerr’s Covid-19 Updates

I’ve seen or heard pieces of information in the media about where we now are in the 3rd wave. For example, last week in an interview on Nationwide News Network, National Epidemiologist Dr Karen Webster-Kerr spoke about the expectation that the peak of this wave would occur in 2 weeks’ time and she gave projections for deaths in the coming weeks. During a discussion on Nationwide on Wednesday, Prof Winston Davidson mentioned that the reproductive number was now at 1.1. (For full disclosure, I was one of the other participants in the discussion.) In today’s Gleaner there is an article that refers to information said to have been obtained from Dr Webster-Kerr and the Ministry of Health and Wellness (MOHW):

“A hair-raising 250 COVID-19 deaths occurred in August, with another 60 fatalities still under investigation, said Dr Karen Webster-Kerr, national epidemiologist. Scores of other deaths reported in August occurred months earlier.

August 26 was the deadliest day for the month, with 20 persons succumbing to the COVID-19.

However, the 296 COVID-19-related deaths for March outstripped August’s.

Data from the Ministry of Health and Wellness obtained by The Gleaner showed that another 20 deaths in March are under investigation.

With the country recording a total of 69,054 COVID-19 cases as at September 2 and a total of 1,568 deaths as a result of the disease, the ministry is reporting that the overall (2020 to 2021) COVID-19 case death rate is 2.3 per cent.

The death rate in August (1.6 per cent) plunged only because infections soared almost fivefold, month-on-month, to more than 15,300.”

At the Office of the Prime Minister’s (OPM) press briefing on Wednesday (1-9-21), Prime Minister Holness included 3 of the slides that are normally included in the MOHW PowerPoint updates and he commented on them, something which he has done before, though moreso in Parliament. Although both the Chief Medical Officer (CMO) Dr Jacquiline Bisasor-McKenzie and Dr Webster-Kerr were present at the press briefing, neither spoke from the podium or gave the ususal update.

(Perhaps this was in keeping with the brief nature of the press briefing…only 3 slides, and only two questions allowed in the Q&A.)

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The last of these MOHW Covid-19 updates that I can find is the one given at the OPM press briefing on August 19, 2021, by Dr Bisasor-McKenzie.

MOHW Covid 19 slide presentation update dated August 18, 2021Download

That is now more than two weeks ago, two weeks in which we have moved towards the peak of the 3rd wave. In that time there have been dramatic increases in the number of cases, the number of hospitalizations, the number of deaths. But we are being told that with the reproductive rate reducing and the positivity rate down from the high of 54%, there may be glimmerings of hope. This is exactly the time at which we need a full update from the CMO or the National Epidemiologist. To place us now in the context of indicators that the MOHW has used for so long.

Why haven’t we had one of these updates, at one of the times when we perhaps need it most, since the start of the pandemic?

We have been getting these periodically. They have been a useful way of tracking changes. Whatever problems some may have with aspects of the data, this is a way of following what the MOHW says the position is, what they are using to base decisions on, what the government is basing decisions on.

There was no MOHW Covid Conversation yesterday; Thursday is the ususal day for them if they are being held. No presentation at the OPM press briefing on Wednesday. No presentation at Parliament’s Joint Select Committee dealing with Covid-related matters on Tuesday; Parliament is on summer break. These are the three places that the public usually gains access to these updates. A presentation with commentary by Dr Bisasor-McKenzie or Dr Webster-Kerr would be best. But if that’s not going to happen, post the PowerPoint online on the MOHW website. In fact, press briefing or no press briefing, Covid Conversation or no Covid Conversation, Joint Select Committee or no Joint Select Committee, post it at regular intervals on the MOHW website.

During a crisis such as this pandemic, information to the public is crucial. With this Delta-variant-fueled 3rd wave, with our public hospitals not offering anything but emergency services, with bed capacity overwhelmed, with dangerous oxygen shortages, we are in a crisis within the crisis. We need more information, not less.

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New NIDS Bill Tabled in Parliament

Yesterday afternoon (December 15, 2020) the new National Identification System and Registration (NIDS) Bill was tabled in Parliament.

The NIDS Bill 2020Download

The Bill was read the first and second times and a Select Committee of the House was named; a Select Committee of the Senate is to be named and the two committees will sit jointly to review the new Bill. The MPs named yesterday were:

Delroy Chuck (Chairman), Fayval Williams, Marlene Malahoo Forte, Marsha Smith, Robert Morgan, Dwight Sibblies, Julian Robinson, Hugh Graham and Lothan Cousins.

In his statement about the new Bill to the House, PM Holness didn’t outline a timetable for its passage as he had done in September, but MP Chuck did mention it in his brief comments:

“It is a very important Bill and we certainly would like to use the next two months profitably and hopefully we can debate and have the Bill passed during this fiscal year.”

It is during this short period that the public will have the opportunity to read and analyse the Bill and to give feedback.

Below is the prepared text of the Prime Minister’s statement, which can be checked against the PBCJ recording to hear his additional comments and to hear the comments made by Leader of the Opposition, Mark Golding.

Text of prepared statement by PM Holness regarding the new NIDS Bill – 15-12-2020Download

The proceedings regarding the new NIDS Bill start at approx 2:44:40 in the PBCJ recording.

The New NIDS: A Coalition Statement

On October 26, 2020, a coalition of organizations in Jamaica released a statement about the new national identification system, in the context of the announcement a few weeks ago that the new Bill is to be tabled in Parliament shortly. The organizations are Jamaicans for Justice (JFJ), the Slash Roots Foundation, Caribbean Vulnerable Communities Coalition (CVC), Jamaica Youth Advocacy Network (JYAN) and Jamaica Accountability Meter Portal (JAMP). The statement is posted on the JFJ website and is posted in full below.

The New NIDS: An Opportunity to Do Things Differently

OCTOBER 26, 2020 – On September 29, 2020, the Government of Jamaica indicated that fresh legislation to establish the National Identification System (NIDS) would be tabled, debated, and passed by the end of the year. We welcome the restarting of public discourse on NIDS and the government’s commitment to send the Bill, when tabled, to a Joint Select Committee of Parliament which will take submissions from members of the public.

As Jamaicans, we are all too familiar with the inefficiencies and frustration that stem from ineffective identification options—multiple visits to government offices; numerous calls to find a Justice of the Peace to certify documents; or, in the worst cases, inability to access services when we need them.

As a country, we can do better. But national consensus on HOW we address this problem will be critical to achieving a future in which all persons realise the benefits of access to reliable identification in a way that respects their fundamental rights and inherent freedoms. To achieve this goal, we must bear the following in mind.

1. Flaws in national identification systems can lead to unintentional, but systematic exclusion. When they are rushed or not designed inclusively, oversights in the implementation of national identification systems can have far-reaching implications, including human rights violations. Kenya and India provide relevant lessons. Earlier this year, the Kenyan High Court delayed the implementation of their ID system after it found that it was systematically excluding minority groups. In India, recent studies of their ID system have found that it has failed to improve the efficiency of the state welfare programmes (similar to our PATH programme), and has actually made them more difficult to access for the communities who rely on them the most. Engaging with diverse stakeholders early in the process can assist in identifying potential pitfalls that would be more costly to address later in implementation.

2. Great care is needed in the consultation process. If adopted, NIDS will be the most far-reaching system for collection of sensitive, personal information by the government in Jamaica’s history. While the need and opportunity is clear, the risks are also significant. Future generations of Jamaicans will have to live with the systems we design today. To do this well, consultation with the public should be genuine, with a sincere willingness to make changes where necessary.

3. Learning from the first NIDS process is essential. The first attempt to establish NIDS lacked consensus. It was passed amidst intense parliamentary divide, had no formal channel for public input, and was ultimately struck down by Jamaica’s Supreme Court because it violated people’s rights. In this second attempt, the government must commit to doing things differently in pursuit of national consensus.

Accordingly, we offer these initial recommendations for this next phase of Jamaica’s NIDS project.

1. Ensure that there is sufficient time for meaningful public participation in the law-making process. For the government’s commitment to public input to be meaningful, it must be embraced in the truest sense. At present, the end-of-year timeline for the tabling, public consultation, revision, debate, and passage of the NIDS Bill will be insufficient. This law is likely to affect Jamaicans in profound ways, they therefore must have a real opportunity to understand the concepts in the Bill for themselves and sufficient time to prepare any submissions on areas of concern. Adequate time should also be given to allow Parliament’s honest engagement with the varying perspectives. The process should recognise and respect these considerations. Accordingly, we urge the government to revise the proposed approach, which provides only roughly two months to consider, debate, revise, and pass this Bill.

2. The NIDS Bill should not be passed prior to the operationalisation of the Data Protection Act. Though the Data Protection Act was passed in June 2020, the law has not yet been brought into force by the government— meaning that it has no legal effect until the government decides it will. Bringing the law into force would require, among other things, the appointment of the Information Commissioner—the nation’s chief data protection entity—and publication of the Act’s Regulations, which will outline how entities that hold data such, as NIDS, should operate in practice.

These are critical building blocks of the “digital society” that the government is aiming to transition the country towards. However, with the current end-of-year timeline announced by the government, it is possible that the NIDS Bill could be passed before there are any systems in place for protection of personal data and privacy under the Data Protection Act.

Because NIDS will collect unprecedented amounts of personal data, it is in the country’s best interest to have a data protection infrastructure in place prior to Parliamentary consideration of NIDS. This is critical to ensuring that the systems envisioned by the Data Protection Act are truly (not just in theory) functional and capable of safeguarding people’s information and that the legislation is itself sufficient. Jamaica has not yet seen any element of the Data Protection Act in practice. We strongly urge the government not to pass a NIDS Bill that would sanction the most far-reaching system for collection of people’s private information in Jamaica’s history without this.

3. NIDS should be a voluntary system in both law and in practice. People should not face the prospect of social exclusion because of non-enrolment, nor should their conditions be made more difficult in order to compel their enrolment. While the government can no longer criminalise and fine persons who choose not to enrol (as was previously the case before the Supreme Court struck down the prior NIDS law), other measures that have the effect of coercing persons to enrol should be avoided. Such measures include making certain services contingent on enrolment in NIDS so that those using those services have no choice but to register. Jamaicans should retain the ability to access services in a way that respects their personal autonomy, dignity, and freedom of choice.

THE WAY FORWARD

2020 has demonstrated in no uncertain terms that as a country, we must do things differently. For a project of this magnitude, it will take all of us—the people, the government, the opposition, civil society, and the private sector—to build a system that we can all be proud of; a system that respects our fundamental rights, protects our privacy, and promotes social inclusion through greater efficiency.

To the Jamaican people: In the coming months, we will have the opportunity to read this Bill, engage in discussions, and make our voices heard before Parliament. NIDS may fundamentally change how the state recognises us. It is crucial that we actively shape this for ourselves and future generations.

To the Jamaican government: You have the opportunity to demonstrate your commitment to public participation, social inclusion, and good governance. We urge you to embark on this important national enterprise with genuine respect for the perspectives and different life circumstances of the Jamaican people. We take the Prime Minister at his word when on election night he stated that “It must never be that this Government takes the people for granted.” On the topic of NIDS, this includes giving us sufficient time to prepare and participate.

As organizations who care about creating an inclusive and safe national identification system, we look forward to working with the government and the communities that we serve to bring their ideas and contributions to this process. 

ON BEHALF OF

• Jamaicans for Justice
• The Slash Roots Foundation
• Caribbean Vulnerable Communities Coalition
• Jamaica Youth Advocacy Network
• Jamaica Accountability Meter Portal

(For full disclosure, I work on the NIDS issue both as a member of JFJ and in my personal capacity.)

Minister Chuck & the INDECOM Debate

In Parliament on Tuesday (July 21, 2020), Minister of Justice Delroy Chuck opened the debate on his motion to amend the Independent Commission of Investigations Act, 2010. In a presentation lasting less than ten minutes, he laid out the government’s position regarding the proposed amendments and the process to be followed to get there. No-one else spoke in the debate on Tuesday. Minister Chuck ended his statement saying that it was the intention that the debate should be concluded next week:

“Mr Speaker, I now ask for a suspension of the debate and hope that other Parliamentarians will see it appropriate to make their contributions next week when we hope to close the debate.”

I wonder who will speak next week and for how many minutes.

As Minister Chuck has indicated before, the Government is asking the Members of the House to support all the recommendations included in the 2015 report of the Joint Select Committee that reviewed the INDECOM Act, except the recommendation to give INDECOM the power to prosecute.

When Minister Chuck spoke about this recommendation on Tuesday,  he added “And I dare say, Mr Speaker, I was one of the strongest proponents of that view. ” The view that INDECOM needed the power to prosecute.

Minister Chuck’s change in position seems to be based primarily on the increased number of prosecutors at the Office of the DPP. He spoke generally about the increased numbers, and referred to an existing MOU between the Office of the DPP and INDECOM:

Mr. Speaker, it is important to note that a MOU was arrived at in March 2018 between the ODPP and INDECOM whereby, among other things, two prosecutors were assigned specifically to liaise directly with and treat with INDECOM matters.  Indeed, if more prosecutors are needed to deal with INDECOM matters in a timely manner, I am assured by the DPP that one or more prosecutors can be so assigned.

Minister Chuck’s Opening statement, p. 2

What he did not do was to provide any data on how that MOU has functioned. There was no data, for example, on the number of files INDECOM has sent to the ODPP each year; no data on how long it has taken for the ODPP to make decisions on the files sent; no data on the causes of any delays; no data on what decisions have been made (without identifying the individual cases themselves, but whether decisions were made to prosecute, to send to coroner’s court or for disciplinary proceeding or other options).

Beyond the Minister’s assurances, what would Members of Parliament (and members of the public) rely on to assess how the ODPP has managed the INDECOM files to date and will be able to manage them in the future?

Although the Minister didn’t specifically refer to the Joint Select Committee recommendation that INDECOM should clearly have the power to arrest and charge, this is not being supported by the Government either. (See Section 20, p. 10 of the report.) And Minister Chuck didn’t give the reasoning for this in his presentation.

Mr Chuck listed a number of additional amendments to be included and set out the intended process if the motion passes:

These recommendations plus others in the Report will be introduced in a Bill to amend the INDECOM Act and drafting instructions will accordingly be provided to OPC at the close of this debate and after further consideration by Cabinet.  I hope that the proposed amended Bill will be tabled in Parliament during this fiscal year.

Minister Chuck’s Opening statement, p. 4

Next week is scheduled to be the last week before Parliament goes on its summer break. This debate is likely to be completed and the motion passed without much notice. And this will be a blow for police accountabilty measures in Jamaica. There will still be the opportunity to advocate for inclusion of these powers up until a new Bill is actually passed, although Minister Chuck has indicated the Government’s position.

INDECOM, under the leadership of its first Commissioner – Terrence Williams – has had a significant impact in its first ten years. I wonder what the next ten years will bring…

Related Documents

Motion Regarding Amendments to the Independent Commission of Investigations Act, 2010 brought to the House on May 27, 2020, by Minister of Justice Delroy Chuck. (If I find a better copy of the motion, I will post it.)

Text of Minister Chuck’s Opening Statement in Debate on INDECOM Act Amendment Motion 

MINISTER CHUCK’S OPENING PRESENTATION – INDECOM – Amendment to INDECOM Act – dated 17-7-2020 – delivered 22-7-2020

Report of Joint Select Committee Reviewing the INDECOM Act – Tabled in Parliament 2015

Joint Select Committee Report on INDECOM Act

 

Recent post by Jamaicans for Justice on proposed amendments to the INDECOM Act

JFJ – Safeguard INDECOM’s Independence – Reform the INDECOM Act – 22-6-2020

PBCJ Recording of the Sitting of House of Representatives July 21, 2020 Minister Chuck’s statement begins at approximately 3:43:00 in the recording.

PBCJ recording of Sitting of House –  July 21, 2020

 

 

 

 

Long-Awaited Joint Select Committee Report on Review of Sexual Offences & Other Acts

The long-awaited report from the Joint Select Committee reviewing the Sexual Offences Act, the Offences Against the Person Act, the Domestic Violence Act and the Child Care and Protection Act was tabled in the Parliament yesterday, December 11, 2018.

The review of the four Acts had its origin in a Private Members Motion tabled by then Opposition Senator Kamina Johnson Smith in 2013. A previous Committee began the review in 2014, but didn’t complete the review before the general elections in 2016. The new Committee began its deliberations in January 2017 and held nineteen meetings. More than thirty submissions were made by entities or individuals.

I have not yet read the report in detail, but am posting it on my blog to provide a copy for those who wish to read and consider it.

                                                      (Click on link below)

Joint Select Committee Report – Review of Sexual Offences & Other Acts December 2018

The JCF & Accountability: A Policeman Speaks Out & 3 Opportunities For Change

Listen to Nationwide News Network’s special report “Hidden Culture”. It is narrated by Nationwide’s Marjorie Gordon and centres on an interview with a serving member of the Jamaica Constabulary Force (JCF). It is a chilling account of the ways in which extrajudicial killings are carried out and covered up by members of the police force, with the involvement of gazetted ranks. The policeman’s voice has been distorted to protect his identity. It was first broadcast on March 21, 2018, was rebroadcast a number of times that week and is now posted on SoundCloud.

Many of the things that he spoke about are things that have been reported on before, things that I have heard of over many years. The difference here is that a serving policeman is giving a personal account in an interview being broadcast on radio.

“You’re a constable going to work and you realise that your name is set to go on an operation to be conducted 3 o’clock in the morning. So, I go on the operation. When I go on the operation with several other officers, we are briefed by the officer in charge of that operation, who is sometimes a Deputy Superintendent, sometimes an Insepector, sometimes even a Superintendent himself. And what we are told to do, the instructions that we are given on that operation, kill!…We’re going fah a particular person and wi not going to lock him up. There were times when members would ask the question, “So Supa, when we hold So-and-So, what di position? Jail or morgue?” And we are told, “Mi nuh inna nuh jail business.”…As a young constable on an operation like that, what am I to do? What am I to do? Can I stand in the crowd of twenty, thirty police officers and say I’m not going? I can’t do that. So I go on the operation, as a part of this operation, and when I see my colleagues fire shots in an innocent man….I’ve been on operations where I myself have fired. It does something to you. It did something to me and it has…it is doing something to others out there. I have a lot of colleagues who are lost in the culture. I realise…I have realised and I have come to the conclusion, most of us, we have lost ourselves because of how we are taught in the streets when we leave training school.” (Transcribed from Nationwide News Network’s ‘Hidden Culture’)

It has long been known that the problem is not simply one of individual rogue police, but that there is a culture within Jamaica’s police force that supports the use of extrajudicial killings as a crime fighting method. And there are those outside the JCF, across the society, who believe this also and would want us as a people to turn a blind eye and allow the police to do weh dem haffi do.

If we want to change this culture, to rid the JCF of this approach, to have a police service that is unequivocally committed to lawful, professional, accountable and rights-centred policing, then we have to seize opportunities for change. At the moment, three such opportunities present themselves.

• A New Commissioner of Police

A new Commissioner of Police was sworn in on Monday, March 19, 2018 – Major General Antony Anderson. He is a former head of the Army and is very familiar with the national security situation in Jamaica. One person alone cannot change the culture within and reform the JCF. A Commissioner can, however, provide the type of leadership that may facilitate such change. Whether Commissioner Anderson will (or will be able to) achieve the necessary change remains to be seen, but his appointment opens up an opportunity.

(An associated issue that does need to be considered is how much reliance on the military for/in policing is a good thing. For another blog post perhaps.)

On March 22, 2018, the day after the first broadcast of Nationwide’s special report, the JCF issued a statement in response, which said that

“The purported actions, which are being recounted by an alleged lawman, are categorically condemned by the High Command as they do not align with the principles and standards of a modern Police Force.

The JCF has implemented a series of measures to reinforce acceptable standards of behaviour by its members, particularly with respect to use of force, human rights and engagement with the public.”

It pointed to the JCF’s Early Intervention System, described as “a proactive approach to identifying members who may display tendencies of abnormal behaviour and thereby allowing for timely intervention.” It also mentioned the oversight roles of the  Independent Commission of Investigation (INDECOM), the Inspectorate of Constabulary  (IOC) and the Major Organised Crime and Anti-Corruption Agency (MOCA). It promised  “to further seek to create a mechanism that will allow persons who have information in these matters to offer same in confidence and without fear.”

Perhaps I have heard too many such statements over the years to find this reassuring. What actions will follow?

• Strengthen Rather Than Weaken INDECOM

The two Court of Appeal judgments which were handed down on Friday, March 16, 2018, raise once again the need for the Parliament to revisit the Independent Commission of Investigations (INDECOM) Act. A Joint Select Committee (JSC) of Parliament held meetings from 2013 – 2015 and carried out the first review of the INDECOM Act, as required by the Act itself. The Committee produced a report with its recommendations, which was tabled in Parliament in November 2015. (Click here for a copy of the Joint Select Committee Report on INDECOM Act.) No action has been taken in Parliament regarding this report or its recommendations. (See my blog post in February –  Parliamentarians, A Joint Select Committee & INDECOM.)

On March 21, 2018, human rights NGO Jamaicans for Justice issued a press release calling for Parliament to make amendments to the INDECOM Act:

Both Prime Minister Andrew Holness and Justice Minister Delroy Chuck have said that a Parliamentary Committee is to be established to review the INDECOM Act…again. At this point there is no clear indication of the timeline for the establishment of the Committee, how long it is likely to meet or when it will produce and table its report. It also isn’t clear whether it will be asked to review the Act in its entirety or only specific aspects of the Act, those affected by the Court of Appeal judgments, for example. It isn’t clear what weight, if any, will be given to the review done by the 2013 – 2015 JSC or if the public will have the opportunity to make submissions to the new Committee. And after the Committee tables its report, what action will the Parliament take in regard to its recommendations? What if there is a change of government after the report is tabled? Will that delay Parliament taking any action on the Committee’s recommendations, as seems to have been the case with the 2013 – 2015 Committee’s recommendations?

The news now is that INDECOM is seeking leave to appeal to the Privy Council for clarification on important issues in the case, including constitutional issues. It is also reported that Minister Chuck thinks that INDECOM shouldn’t seek to appeal, but should rather wait to see what Parliament decides to do.

So we continue to wait…to see what Parliament will do and when and whether it will use this opportunity to strengthen or weaken the important role INDECOM plays regarding accountability for the police force.

• The Police Service Act to Replace the Constabulary Force Act

The Jamaican public first learned of the Government’s plans to replace the Constabulary Force Act with a Police Service Act via a March 2017 Government of Jamaica Letter of Intent to the International Monetary Fund (IMF).

“Implement a full legislative review that leads to (i) completion of a draft new Police Service Act to replace the Jamaica Constabulary Force
Act, that supports the modernization and transformation of the
Jamaica Constabulary Force into a modern intelligence-led police
service that ensures Citizen Security, with stronger systems of
administration, management and internal discipline….” (p 21)

The October 2017 Letter of Intent indicated that the measure was “[o]n track for completion by target date”, the target bate being October 2017 (IMF – Jamaica Second Review Under the Stand-By Arrangement Etc October 2017 p 43).

In the Throne Speech delivered by the Governor General in Parliament on February 15, 2018, this new Police Service Act is included as one of the legislative actions to be taken during the 2018 – 2019 legislative year.

Throne Speech 2018, p 7

This proposed new legislation is obviously an important opportunity for reform of the police force. True reform – the modernisation and transformation being referred to – cannot be achieved by tinkering around the edges of the current legislation or by focusing primarily on increasing the powers of the police. It cannot be accomplished without full and genuine consultation with the people the police service is intended to serve. The legislation cannot be rushed through Parliament without allowing adequate time and opportunity for those who wish to make submissions about the draft legislation to do so. Indeed, it would be best if there were also consultation on the actual draft legislation before it was tabled in Parliament. I know that new legislation is only one part of what needs to be done, but we cannot afford to miss this opportunity for change.

How these three opportunities are handled will have an impact on many aspects of the workings of the police force and whether we move nearer to or further from achieving a professional and accountable police service. One marker in that process – nearer to or further from – will be the impact on that hidden culture of extrajudicial killings.

Relevant documents – Court of Appeal Judgments

The Police Federation, Merrick Watson (Chairman of the Police Officers Association), The Special Constabulary Force Association and Delroy Davis (President of the United District Constables Association) v The Commissioner of the Independent Commission of Investigations and the Attorney General of Jamaica [2018] JMCA Civ. 10

Albert Diah v Regina [2018] JMCA Crim 14

 

 

(I am a member and a spokesperson for Jamaicans for Justice. My blog posts are all done in my personal capacity, however.)

Parliamentarians, A Joint Select Committee & INDECOM

In Parliament last week Tuesday (January 30, 2018), during the discussion about extending the period of Public Emergency in St James, Prime Minister Andrew Holness and Opposition Leader Peter Phillips both commented on the functioning of the Independent Commission of Investigations (INDECOM).  Their comments fit into an ongoing narrative that paints INDECOM as not being “balanced” in its approach and acting in a way that demoralizes the members of the security forces it is mandated to investigate.

Dr Phillips: I’d like to end by also offering our commendations to the security forces for, not only in this area in St James but generally, the rank and file for the most part and the officers for the most part have conducted themselves with commendable efficiency in very difficult circumstances and they are to be commended. And I think even as they go, not only there but in the other areas of the country, while we urge them to obey the law, I want to urge those who investigate them, including INDECOM, to be mindful of the circumstances in which they operate. If I can be blunt, if INDECOM has a problem with the members of the security forces, I don’t think they should disarm them in public in full view of the citizens. I think that that unnecessarily demoralizes the men and women who are urged to obey the law, but who operate in what is a very dangerous situation on the street. There is literally a war that has been declared on society and in that circumstances you cannot weaken those who serve in the face of those who attack them.

In responding to Dr Phillips, PM Holness said:

You mentioned INDECOM. We take the view that there really needs to be balance in how INDECOM operates. I’ve decided not to go any further with my comments on INDECOM. I think this House, which created the institution, which still retains the power, at some point…I suspect it would have to be sooner than later…we will have to take some decisions…to ensure that that very important institution operates with balance.

(A video recording of the session in Parliament is available here. Dr Phillips’ comment begins at 1:11:59 & PM Holness’ comment begins at 1:37:00.)

The following day, INDECOM issued two press releases in response to the comments in Parliament. In the first, the Commission refuted Dr Phillips’ assertion:

In the second, INDECOM shared Commissioner Williams’ letter to Justice Minister Delroy Chuck, requesting an opportunity to be informed of the perceived problems and to respond:

Dear Minister Chuck,

Re: Remarks in Parliament on INDECOM

Reference is made to the captioned.

On the 30th instant, remarks were made in Parliament that INDECOM needed “balance” in its work and that INDECOM’s investigators were disarming police officers in public spaces.

As a Commission of Parliament, INDECOM is obligated to make reports to Parliament on matters of concern. We do not know what claims advised the assertion that our work lacks balance and would appreciate an opportunity to be so advised and to respond. As misinformation must not be permitted to direct policy.

The remark about disarming of police officers ia an example of misinformation. This was raised by the Police Federation during the Joint Select Committee’s Review of the INDECOM Act. We were able to debunk this claim. The position remains that police officers are disarmed by their colleagues and this is done at the police station. A 2014 JCF Force Order published the agreed protocol between the JCF in this regard.

Given your statutory remit to serve as the liason between INDECOM and Parliament, INDECOM seeks your kind intervention in this matter to permit us to be aware of assertions being made and to answer them.

Yours sincerely,

INDEPENDENT COMMISSION OF INVESTIGATIONS

Terrence F Williams

Commissioner

 

This is not the first occasion on which PM Holness has spoken about INDECOM needing to be more “balanced” in its approach or for the need to review or make changes to the INDECOM Act. It is unfortunate and unhelpful, however, that the Prime Minister hasn’t been more specific in making clear exactly what he means by “balance/balanced” or what aspects of the Act he thinks need further review or need to be changed. His repeated references without specificity encourage speculation, limit INDECOM’s ability to respond and may have the effect of eroding confidence in the workings of the Commission.

Review of the INDECOM Act

Section 37 of the INDECOM Act, which came into effect in 2010, requires periodic reviews of the Act, the first to take place no later than three years after the Act came into effect.

In 2013, a Joint Select Committee (JSC) was established to review the Act; it began its examination on June 27, 2013, held 23 meetings, concluded its report in October 2015 and the report was tabled in Parliament in November 2015. 

A copy of the report is available here: Joint Select Committee Report on INDECOM Act. What has happened to the report since it was submitted to Parliament? Which of the JSC’s recommendations have been accepted or rejected? What amendments to the Act are to be tabled in Parliament? More than two years after the report was submitted, it would be reasonable for the public to have some official word via Parliament.

A September 29, 2016 Jamaica Information Service (JIS) release titled “Cabinet Looking at Report on INDECOM” included the following reference to a statement made by National Security Minister Robert Montague:

Last year there was a report in the media that Minister of Justice Delroy Chuck had indicated there had been some movement regarding Cabinet’s consideration of the JSC recommendations, but there has still not been any action in Parliament regarding the report and its recommendations.

And this is part of what makes the comments in Parliament last week by the Leader of the Opposition and the Prime Minister so remiss.  Parliament passed a law establishing INDECOM, a Commission of Parliament (2010). That law passed by Parliament required a review of the law not more than three years after passage. Parliament established a Joint Select Committee of both Houses to conduct that review (2013). That Committee of Parliament held meetings over two years and produced a report containing its recommendations. That report was tabled in Parliament (2015). More than two years later, there has been no further action in Parliament regarding that report and its recommendations (2018). Yet the Prime Minister and the Leader of the Opposition found it appropriate to make the comments they did in Parliament.

The Prime Minister did say “I think this House, which created the institution, which still retains the power, at some point…I suspect it would have to be sooner than later…we will have to take some decisions….” Yes, I would suggest that Parliament – that Parliamentarians – take some action, make some decisions. The current situation really makes a mockery of Parliament’s own processes.

 

 

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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.

Minister 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

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.

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:

PM Holness: Contribution to 2017-2018 Budget Debate

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.

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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.

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?

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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