Emergency appeal

The Jamaican Government is urging the Court of Appeal to fast-track its challenge to a Supreme Court ruling that declared 14 states of public emergency (SOEs) “unconstitutional”, warning that the decision threatens the state’s response to crises and exposes it to lawsuits.

In an application filed on June 4, the Attorney General Chambers requested that the appeal of the May 16 judgment be expedited, citing “extreme urgency” and the potentially “crippling” legal impact of the decision that impugned the various SOEs declared between 2018 and 2023.

“The judgment of the Full Court will leave the appellant without a defence in those claims,” attorney-at-law Kamau Ruddock declared in a sworn affidavit submitted in support of the application. The Full Court in this case was also called the Constitutional Court.

“It may be interpreted that the issue of the constitutionality of the SOE as declared by the governor general pursuant to section 20(b) of the Constitution has been determined by the Full Court.”

The application, which names Opposition People’s National Party (PNP) General Secretary Dayton Campbell as the respondent, seeks three main orders: (1) that the hearing of the appeal be expedited, (2) that costs be awarded as part of the appeal process, and (3) any further relief deemed appropriate by the court. The case stems from a lawsuit Campbell filed in 2023.

Notice and grounds of appeal were filed on June 2.

The Government’s legal team argues that the Full Court’s sweeping ruling, which invalidated 14 separate SOE declarations issued between January 2018 and February 2023, risks creating a legal vacuum in the state’s national security strategy. The court found the SOE proclamations were not made for a constitutionally valid purpose and failed the test of being “demonstrably justified in a free and democratic society”.

VIOLATION

Notably, the unanimous ruling also declared that three specific proclamations – those made on November 15, December 6 and December 28, 2022 – violated the doctrine of separation of powers as they sought to get around the parliamentary Opposition, who is against SOEs and whose vote was needed to extend them beyond 14 days.

These findings, the Government now contends, misinterpret the scope of the governor-general’s authority under Section 20 of the Constitution, which empowers the executive to declare SOEs where threats to public safety or essential services arise.

In her affidavit, Ruddock accused the Full Court of multiple legal missteps, asserting that it “fell into error when it conflated Sections 19 and 20 of the Charter of Fundamental Rights and Freedoms”.

According to the Government, the court imposed an improperly narrow interpretation of “emergency”, and failed to appreciate the full context and evidence available at the time of each proclamation.

“The Full Court erred by finding that there was no evidence before them that circumstances existed to satisfy the governor general,” Ruddock stated. He added that the Government believes it “has a good arguable case for appeal with a real chance of success”.

The urgency of the Government’s position is underscored by the raft of civil suits now working their way through the courts.

At least a dozen matters – filed by persons alleging unlawful detention under the SOEs – are pending in the Supreme Court. These include claims from individuals such as Vevian Nesta Henry, Conrad Christopher Dawkins, Everton Douglas, Craig Travis Smith, and Peter Roderick Thompson, all of whom have named the minister of national security, the commissioner of police, the governor general and the attorney general as defendants.

If the Full Court’s ruling stands unchallenged in the interim, the Government fears it will have no legal standing to contest these constitutional claims.

“The appellant will be extremely prejudiced if the orders being sought are not granted,” Ruddock stressed.

Constitutional attorney John Clarke, who is also chairman of the rights group Jamaicans for Justice, has urged Jamaicans who were detained under SOEs to seek legal advice. “I would urge all persons who were detained to promptly contact any attorney-at-law that they know to try and get compensation for the unlawful and unconstitutional action taken by the State,” he said.

The Government’s application invokes the Court of Appeal’s rule which allows the court to advance the hearing date of a matter deemed urgent. The State argues that the overriding objective of the justice system – to deal with cases justly and expeditiously – would be served by granting the request.

At the heart of the matter is the interpretation of Section 20(2)(b) of the Jamaican Constitution, which allows the governor-general to declare a state of emergency if satisfied that action is being taken, or is immediately threatened, by any person or group, on a scale likely to endanger public safety. The Constitutional Court found that the government’s declarations did not meet this constitutional threshold.

However the government insists that its use of SOEs has been in response to real and escalating threats, particularly from organised criminal gangs and spikes in violent crime

The PNP and human-rights groups welcomed the judgment as a safeguard against executive overreach, while government officials have warned that the country could be left vulnerable if the ruling is not overturned or suspended.

The ruling represented a significant defeat for the Andrew Holness administration, which leaned heavily on the repeated use of SOEs to combat Jamaica’s chronic violent crime crisis. That the decision came amid major reductions in crimes, in particular murder, has only intensified debate about whether the ends justify the means used.

It also resurrects concerns that stemmed from a 2016 warning by then Attorney General Marlene Malahoo Forte, now minister of constitutional and legal affairs, who told Parliament: “To successfully tackle the murder problem, some of the fundamental rights and freedoms which we have guaranteed to our people may have to be abrogated, abridged or infringed.”

In their 44-page opinion, the Full Court, comprising justices Bertram Morrison, Andrea Pettigrew-Collins and Simone Wolfe-Reece, said “ the government failed to honour the counsel of prudence”.

“ This court has determined that the SOPE[s] were not imposed for any of the purposes contemplated ... Thus, there can be no justification for any abrogation, abridgement or infringement of one’s constitutional rights as a consequence of the existence of a SOE that ought not to have been imposed in the first place,” they said.

The court described statistical justification from Deputy Commissioner of Police (DCP) Clifford Blake as evidence that was vague and overly reliant on “general crime trends”, which did not satisfy the Constitution’s requirement for a public emergency, which it defined as “a sudden, unexpected action or event that negatively impacts an entire community”.

“ The evidence of DCP Blake makes it plain ... that the SOE[s] are being utilised as a method of policing over an extended, albeit not continuous, period of time. He describes a scenario where the policing arm of the State has, for many years, not been able to utilise standard law-enforcement methods to cauterise an intolerably high level of crime,” the judges said.

The Government had argued the said SOEs were necessary to disrupt gangs and restore order. It had also claimed that Campbell was not a proper person to bring the lawsuit because, among other things, he was not living in any of the areas affected by the SOEs. However, the court rejected that argument, affirming that a citizen may bring a public interest claim for constitutional review.

Campbell is being represented by King’s Counsel Michael Hylton of the firm Hylton Powell.

jovan.johnson@gleanerjm.com