Shena Stubbs, Contributor
THE CRIME situation in our sister island Trinidad and Tobago is widely regarded as being at epidemic levels by the inhabitants. In a population roughly half the size of Jamaica, the murder toll for the year ended 2002 was somewhere in the region of 160 and this caused and has been causing quite a stir in Trinidad and Tobago.
Here in Jamaica, we are already past the 740 mark for the year with the month of September alone seeing more than 90 persons killed and 1000 deaths by murder estimated by year end in keeping with recent trends.
Given the population size of Jamaica when compared to Trinidad and Tobago, it stands to reason, if the same measure is applied, that we were ourselves facing epidemic levels of crime when our murder toll started to go over the 320 figure in a given year. Not to be outdone, however, our murder toll in Jamaica has hovered in the region of 1000 for so many years now that I am having to really 'rack' my brain and with no success to remember when the murder toll was last under the 500 mark. Not surprisingly, therefore, many of us have become desensitised to crime. Afterall, a country the size of Jamaica does not get to be number two in the world in terms of its murder figure without all of us being exposed to crime either directly or indirectly at some time or the other.
Given the aforesaid, it is not surprising that we in Jamaica are hearing the kind of quasi-hysterical/quasi-well thought out proposals to the crisis that we have been facing for sometime now but just waking up to. The growing wave of murders and armed robberies in Trinidad and Tobago has elicited calls for a State of Emergency in that country, which would curtail some of the rights of the citizenry and give the security forces greater powers of detention and search.
These proposals have been met with strong opposition from human rights group and from the Prime Minister himself who, last year, reassured those members of the public who feared the idea, that there was no need to fear a declaration of a State of Emergency. The country, he stated, was involved in gang warfare and other means were being employed to tackle the crisis other than resorting to a State of Emergency.
THE JAMAICAN PROPOSALS
While Kingsley Thomas' beacon call at the Rotary Club function last Monday might have fueled the new debate on the suitability of a State of Emergency for Jamaica, the suggestion is one that has been making the rounds in civil society for sometime now and derives its credibility from the eminence of the proponents of the idea.
It is instructive, given Mr. Thomas' proposals to look at some of the other variations on this theme which have, in recent times, been put on the table.
Winston Witter in a newspaper column last year, after recounting the impact of crime on the society, ended with a plea for a State of Emergency, now! He acknowledged that our past history with the idea had made us wary of a repeat but concluded, "the fact that the state in the past has been able to wield power for its own sake, is very much the making of docile men rather than the impropriety of law.(Jamaica Observer, November 23, 2002). In other words, the fact that the mechanism had not worked before was not as a result of any deficiency in the mechanism itself but rather in the persons who operated the mechanism.
Dr. Don Robotham, eminent scholar and social scientist, a gentleman, I hear, soft of speech and not given to the scales of intonations and passion that you would expect to hear, say, from a Trevor Munroe, nonetheless, also got involved in the fray last year when he recommended a limited State of Emergency that would include detention without trial.
INEFFECTIVE JUSTICE SYSTEM
Dr. Robotham too spoke against the backdrop of a state petrified with fear and an ineffective justice system in which criminals were rarely convicted. To be fair to Dr. Robotham, though, his proposal with regard to the detention of criminal gunmen without trial was that such intervention was to be carried out in a legal, norm-governed and transparent manner with credible mechanisms to identify, minimise and rectify abuses in good time (The Sunday Gleaner, November 17).
While persons such as Barbara Gloudon and Cecil Gutzmore vented their opposition to the proposal, other figures such as Geoff Brown, Mark Wignall and noted Attorney-at-Law, Berthan McCauley, came out in support of the concept or variations thereof.
Geof Brown used Canada as an example to make the point that there are other places in the world where persons have voluntarily sacrificed normal civil and legal rights when the society itself is under serious threat (The Jamaica Observer, Friday November 22,2002). By extension, therefore, Dr. Robotham's proposal should not be dismissed lightly.
Professor Trevor Munroe has also suggested that citizens might have to give up some rights for a time in the fight against crime and Mark Wignall has suggested that a cross-roads between Dr. Robotham and Professor Munroe is the way to go and that he is prepared to give up some of his rights to see criminals flushed out of their hiding places and "held".
TEMPORARY DETENTION
Berthan McCauley, to my mind, took it even further, expressing his view in the Observer, December 17, 2002, that it was, "better that 99 innocent persons suffer temporary detention than that one possible traitor should wreck the nation. It would certainly be complete madness," he continued, "to let 99 guilty men escape in order to avoid the risk of punishing one innocent person. Our ideals must guide us not blind us."[italics mine].
In theory, Mr. McCaulay words sound great but one wonders if he or one of his loved ones were to become one of the 99 innocent persons detained, if his rose-coloured view of curtailing the rights of citizens of Jamaica would not undergo a major about face.
More recently, Bishop Herro Blair has joined the melee by suggesting that the army should be deployed to help in the fight against crime, to rescue society. Again, the background to the suggestion was the rise in crime. According to Blair, "we are at war with the narco-terrorists; we are at war with the political terrorists; we are at war with gunmen and gangsters and many gangs that terrorise our cities". Again, civil rights groups such as Jamaicans for Justice were opposed to the suggestion because of its potential for abuse. Just as the dust was beginning to settle on the Bishop's comments, enter Kingsley Thomas with his revolutionary yet stale proposal and the rest is as you would say, history.
To begin with, freedom from search and of movement, are fundamental rights recognised under Sections 19 and 16 (1) of the Constitution and as such should not be interfered with unless reasonably required to do so. The threshold for interfering with these most fundamental of rights is, however, too low and as such, without amendment, successive administrations will always be able to curtail our fundamental freedoms if it is "reasonably" required to do so. We must entrench these rights in a more real way.
As it pertains to the proposals outlined above, in theory, I find all of them attractive. Unlike Winston Witter, however, I do not think that the mechanism to be employed can be divorced from the persons operating the mechanism. History has been replete with well-intentioned "temporary" instances of curtailing of citizens' rights mutating into gross human rights abuses. One has only to recall accounts of medieval Europe burning of hundreds, probably thousands, of innocent persons at the stake for being witches, or even the Salem Witch Trial in the United States or more recently to the persecution of persons deemed to be Communists also in the United States in the decade of the sixties or thereabout. A lot of these accusations were subsequently shown to be trumped up or very nebulous to begin with but motivated by other considerations.
SECRET POLICE
The Argentinian experience under the Rule of the Generals is also instructive as the society then acquiesced in the curtailment of their rights. This allowed the secret police to extend their scope from picking up rebels to picking up persons remotely opposed to the administration of the day and resulting in one of the largest disappearance of persons ever seen. Nearer home, the use of the tool of declaring a State of Emergency to round up persons sympathetic to Maurice Bishop during the overthrow of Maurice Bishop and the New Jewel Movement is also something that should give us reason to pause. Our own experience in the seventies with the misuse of the State of Emergency should seal any doubts we had as to the efficacy of going this route.
Often we have been told that power corrupts and absolute power corrupts absolutely. If automatons were to operate the State of Emergency or limited State of Emergency being suggested then I would be far more inclined to give it a test run. Alas, the system, to work, would depend, however, upon the very group of persons that have shown themselves time and time again to be given to excesses, even within the shackles of the law that now obtain, that is our security forces and politicians. How, then, can we propose removing these shackles, ineffective as they are at the moment, and giving the beast free rein?
Shena P. Stubbs is an Attorney-at-Law. You can send your comments to shena.stubbs@dunncox.com
