Sheena StubbsIn the name of protecting freedom, the federal government has taken many steps to curtail it.
THIS WAS the American Civil Liberties Union's response to the Patriot Act in the United States which the group asserts was rushed through Congress with little deliberation in the immediate aftermath of September 11. The USA Patriot Act which expands terrorism laws to include "domestic terrorism" which could, in turn, subject political organisations to surveillance, wiretapping, harassment, and criminal actions for political advocacy, also expands the ability of law enforcement to conduct secret searches, gives them wide powers of home and Internet surveillance, and access to highly personal medical, financial, mental health, and student records with minimal judicial oversight. The Act which, along with its counterpart, the USA Patriot Act II, is widely regarded by many Americans as undercutting important checks and balances on government law enforcement and intelligence powers has met with strong opposition in that country with many state legislatures passing resolutions which affirm the very liberties which are threatened by the USA Patriot Act.
The chickens have now come home to roost. As a result of a mandatory Resolution of the Security Council passed in tandem with the post-September 11 worldwide hysteria, we, here in Jamaica, are now on the brink of passing into law, legislation in the form of the proposed Anti-Terrorism Act (the Act) which, to my view, intrudes unto sacrosanct rights.
A variation of the aforementioned Act, which is now being debated in our Parliament, has been passed into law or is in the process of being passed into law in all the other Caribbean regions. That the other regions have "cottoned on" to the legislation is an indicator that the Act in and of itself is not an overt statement of derogation from fundamental rights. Given Jamaica's well-steeped history of excesses, however, it is certainly in order for the citizens of this country to scrutinise this Act very carefully before accepting it wholesale.
The proposed legislation can be divided into three sections. Section 1 focuses on what amounts to terrorist activities and offences. Section 2 focuses on the duties and responsibilities of "entities" such as financial institutions, and section 3 focuses on the increased powers of the Director of Public Prosecutions and the judiciary as it relates to the seizure of property suspected to be aligned in some way with a terrorist group or with terrorist activity. The bill in its current form is over 80 pages and therefore space constraints militate against a thorough exploration of all the implications of the Act. A useful, and, no doubt, the most fundamental place to begin in assessing this Act, however, is with the definition of what amounts to "terrorist activity" or "offence".
TERRORIST ACTIVITIES
AND OFFENCES
Section 3 (1) provides as
follows:
"A person who commits an offence set out in the First Schedule commits an indictable offence and shall be liable to imprisonment for life."
The First Schedule, on the other hand, incorporates as offences, the provisions of several conventions to which Jamaica is a signatory such as the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, the Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf and the Convention for the Suppression of Terrorist Bombings, to name a few.
The Offences implementing the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation section of the First Schedule is, however, especially worrying, as the offences under this section of the schedule include:
"Unlawfully and intentionally seizing or exercising control over a ship by the use or threat of force, violence or any other form of intimidation.
Unlawfully and intentionally:
(a) Committing an act of violence against a person on board a ship, whether or not any physical contact or harm occurs;
(b) So as to endanger, or create a serious likelihood of endangering, the safe navigation of a ship. At first glance, the use of the word "ship" might cause one to look 'outward' rather than 'inward'. The definition of the word "ship" is however so loose that two fishermen engaged in a tug-o-war or a dispute over the course of their fishing 'boat' might very well find themselves on the receiving end of being labelled as committing terrorist activities and as a consequence facing a term of life imprisonment. This is because 'ship' is defined as:
"- a vessel, of any type whatsoever, not permanently attached to the sea-bed, including dynamically supported craft, submersibles or any other floating craft."
The definition of "ship" is too loose and needs to be tightened so that we do not end up catching our own in this noose meant primarily for others.
Section 3 (2) of the same Legislation, makes it an offence punishable by death or life imprisonment, if any person commits an act, or omits to act, in the circumstances referred to in subsection (4).
What amounts to a terrorist activity, then, is a three-pronged test which really starts with
subsection 4 of section 3. The three prongs, sequentially, are as follows:
an act or omission committed in whole or in part for a political, religious or ideological purpose, objective or cause. It is of significance that here in subsection (4), as in subsection (2), failing to act may amount to a terrorist offence/activity.
the act or omission referred to in 1) above must in turn be committed with the intention of: a) Intimidating the public, or a segment of the public with regard to its security, including its economic security.
(b) Compelling a person, a government or a domestic or an international organisation to do or to refrain from doing any act, whether the person, government or organisation is inside or outside Jamaica.
* Finally, the act or omission must result in one of several conclusions as unlikely as death and as likely as causing a serious risk to the health or safety of the public or any segment of the public (subsection (2)
There is an important proviso to subsection (2) which precludes lawful advocacy, protest, dissent or stoppage of work, which does not involve any activity that is intended to result in death, serious bodily harm or causes a serious risk to the health or safety of the public or any segment of the public.
When one connects the dots, it becomes clear that Jamaicans who protest for reasons which are not even necessarily, principally political, ideological or religious, but only in part so, with a view to getting the Government or an individual to respond to their needs may now find themselves labelled as terrorists and facing life imprisonment. Blocking roads as a form of protest, though entrenched in our history is unlawful in Jamaica and therefore not included in the proviso to subsection (2). If the blocking results in 'serious' risk to the safety of a segment of the public, no matter how confined the roadblock, such Jamaicans may be branded terrorists.
While studying in Barbados, the students who lived on the halls of residence had, one year, taken the decision to lock down the campus. This was in an attempt to get the university administration to increase the security on campus. In true Jamaican fashion, and with the help of the Trinis who provided the "juice" and 'vibes' and with support from other persons who lived on hall and hailed from various other territories in the region, we had blocked the main gate to the campus and refused to let anyone unto the grounds, pedestrians and motorists alike. Not surprisingly, there was a little shoving when persons tried to get unto the campus and one car was scratched and one or two of the protesters got minor bruises. No doubt, such activity would now easily fit into the rubric of the proposed legislation and I guess we must thank our lucky stars that we were then living in a more idyllic world that is the pre-September 11 Order. Students of the University of the West Indies, Mona, and UTech too, in fact students of tertiary institutions islandwide who have a strong tradition of barricading gates to protest against hikes in fees, disgruntlement with grades, teachers, and school policies, beware.
What about doctors who go on "work to rule" or "stoppage of work" of dubious legality thereby disrupting an essential service? Subsection 4 (e) of section 3 of the Act speaks to the disruption of an essential service as one of the conclusions which, upon satisfaction of steps 1) and 2) above, would also attract the labelling of terrorist activity. Worst yet, if these same doctors go on to defy a back to work order from none other than the Chief Justice, would not such doctors then be liable to be classified as a terrorist group and sentenced to life in prison?
Certainly, the definition of terrorist activity/offence needs to be revisited and possibly the sentences too. The looseness of the definitions in this legislation taints everything else; so, for instance, section 4 (1) and (2) makes it an indictable offence to collect property, make property available or provide services (which would include just about anything from legal services to serving food or gas) knowing or intending that the same be used by a terrorist group. It should be noted that the service provided does not have to be for the use of terrorism, once it benefits a person committing an act of terrorism or a terrorist group in any manner or form.
It is, therefore, crucial to the preservation of the freedom of movement of even those of us who do not block streets that terrorist activity be properly defined as we might, as a result of association or the provision of services, find ourselves in the dragnet of the enforcers of the law. Given the Jamaican psyche, it is not prudent to adopt en masse provisions that might never lead to the kind of legal atrocities that might arise in Jamaica. I echo the sentiments of the ALCU in enjoining the Government to be careful that in the name of protecting freedom, steps are not taken to curtail it.
* Sheena Stubbs is an attorney-at-law. You can send your comments to Shena.Stubbs
@dunncox.com
