Stephen Vasciannie THERE IS no basis in law for the declaration of a State of Emergency in Jamaica. Given recent pronouncements in favour of such a declaration, however, it may be helpful to review the circumstances in which a State of Emergency may legitimately be called in Jamaica, and to consider briefly the implications of declaring a State of Emergency.
Section 26(4) of the Jamaican Consti-tution indicates the circumstances in which a "period of public emergency" may be recognised for constitutional purposes. Such a period may exist if:
(a) Jamaica is engaged in any war;
(b) There is in force a Proclamation of the Governor-General declaring that a state of public emergency exists; or
(c) There is in force a resolution of the House of Representatives and the Senate -- supported by majority votes in each House -- declaring that democratic institutions in Jamaica are "threatened by subversion".
Notwithstanding the natural tendency to classify as "war" any broad-based initiative to address serious problems, as in the war on drugs, the war on terror, the war against poverty, and so on, when the Jamaican Constitution refers to engagement in any war, what is unquestionably contemplated is the existence of a state of war as that term is traditionally understood.
Thus, for constitutional purposes, a war exists when two or more states are involved in open hostility, involving the use of force; the purist might also add that a war does not exist unless it has been so declared by the combatant states. Jamaica, therefore, is not at war in the constitutional sense.
PROCLAMATION
For the second possibility, the gubernatorial Proclamation, the Governor-General would need to be satisfied that one of a number of preconditions are met. Specifically, a Proclamation by the Governor-General shall be effective if the Governor-General is satisfied that a public emergency has arisen as a result of the imminence of a state of war involving Jamaica, or as a result of a natural disaster (such as an earthquake, hurricane, or flood), or other forms of calamity.
Alternatively, the Governor General is empowered to declare a state of emergency if he is satisfied that action has been taken or is immediately threatened that would be of such a nature and so extensive that it would be likely to "endanger the public safety or ... deprive the community, or any substantial portion of the community, of supplies or services essential to life" (Constitution, Section 26(5)(b)).
With reference to current realities in Jamaica, there is no basis for declaring an emergency on grounds of calamity. The serious problem of crime and violence may prompt the view that unlawful forces have worked to endanger the public safety -- and, indeed, if an emergency comes to be proclaimed, this would be the most likely basis for the proclamation.
But, before making any such proclamation, the Governor-General would need to ask himself whether the crime situation in Jamaica today is any more dangerous to the public safety than it has been in recent years. For the five-year period between 1995 and 2001, the annual average of persons murdered in Jamaica was 973; this shocking level has remained fairly constant up to the present time.
In that context, the question is: where is the national escalation that would justify calling a state of emergency now, as against any time in the last decade? Inherent in the concept of "emergency" is the idea that we have reached a sudden junction requiring immediate action for the state's survival. The state has not identified any action taken, or about to be taken, that takes us into a situation so different from the usual state of affairs that we may reasonably speak of an emergency.
The third possibility, a resolution by each House of Parliament with majority support, requires each House to declare that democratic institutions in Jamaica are threatened by subversion. It would simply be an exaggeration to suggest that this precondition has been met in today's Jamaica, notwithstanding loose, unsubstantiated, talk about the significance of drug kingpins in the Jamaican polity.
PRECONDITIONS
So the legal preconditions for declaring a state of emergency have not been met, and this fact is sufficient in itself to counter the strident calls for an emergency emanating from some local and foreign quarters. That said, however, it should also be emphasised that the declaration of a state of emergency is hardly the appropriate remedy for the level of crime and violence that prevails in Jamaica.
This conclusion follows from two aspects of the Jamaican Constitution, which hardly appear to have occurred to advocates of the emergency position. In the first place, as I noted last week, the Jamaican Constitution makes ample provision for the state to take serious and effective measures to combat crime -- and such measures may often be taken even if they would affect our basic rights and freedoms.
To be more specific, the Constitution safeguards freedom of movement, protection for privacy of home and other property, freedom of conscience, freedom of expression, and freedom of assembly and association. But, at the same time, the Constitution also indicates that each of these basic rights may be limited by restrictions "reasonably required" in the interests of defence, public safety, public order, public morality or public health.
THE CONSTITUTION
There may be some debates about the precise parameters of terms such as public morality and public health; but it is clear, for instance, that if the right of free movement is limited by a curfew, this is justifiable on grounds of defence, public safety or public order.
Indeed, we sometimes talk as if a state of public emergency is needed to restrict freedom of expression, but here again, the Constitution would allow restrictions "reasonably required" for public safety or public order. Some of those who want a state of emergency may want licence to restrict free speech and so on even if such restrictions are not reasonably required; if that is so, they should be stopped in their tracks. The volume of debate in Jamaica is healthy, and if anything, by allowing persons publicly to vent their feelings, it serves to strengthen the concept of the Jamaican nation.
DEBATE
Secondly, an emergency would be a bad idea with reference to the rights that would certainly be affected. Section 15 of the Constitution safeguards all of us from arbitrary arrest and detention, and Section 20 gives us the protection of law, including the right to a fair trial, protection from double jeopardy, and the right to be informed of the charges brought against us by the state. These are the rights that would be expressly taken away if a state of emergency is declared.
These rights prevent the state from arbitrarily locking us away. Why should persons be clamouring for that to happen? It cannot be beyond the capacity of the Jamaican state to gather evidence against unscrupulous persons who are involved in placing AK-47 into the hands of the dispossessed. The police should be allowed to do their work, but they do not need the power to lock up any and everybody at will in order to get results.
Stephen Vasciannie is Professor of International Law and head of the Department of Government, UWI, and consultant in the chambers of the Attorney-General.
