File
These men from Tivoli Gardens are forced to lie in a marl pit during an operation by the security forces in the west Kingston community in 2005.
Don Robotham, Contributor
Jamaica is at a crossroads. In the month of May the murder rate increased by about 100 per cent. This is an unprecedented rate of increase. If this continues unabated an already murderous society will come close to the point of collapse.
This is the first point to grasp about our present security situation. It is not just a continuation of the high murder rates of the past.
This is a qualitatively new situation. The entire Jamaican state is close to collapse. What remains of the rule of law in Jamaica could disappear without a trace. Such is the dire situation which we face. This has nothing to do with panic. It is a simple description of the reality - if anything an understatement. Those who argue that the current murder surge is nothing new are guilty of a shocking complacency.
Faced with this harsh reality, the prime minister has proposed that Jamaica adopts aspects of a preventive detention policy. What is being proposed is to enact legislation which would make it legal for the security forces to detain persons without a charge for a period beyond the present legal limit of 12 hours. For how long, we do not know.
Breathing space
The reasons for such a measure are the following. It takes about a year to prepare a legally viable case against persons charged for murder and other offences under the law. After this considerable period has elapsed and the case eventually comes to trial, convictions cannot be secured. The reason is that the witnesses collapse. Recently, two very high-profile cases collapsed completely because of lack of witnesses. While all these delays and aborted trials take place, the murderers continue to murder with impunity. The two highly suspect individuals are now absolutely free to commit as many new acts of violence as they wish. Both the state and the society have been mocked.
If, by means of new powers of preventive detention, we can remove such persons from the communities for a while, we can gain a breathing space in which social and other interventions can be established and the renewal of these communities begin. No social intervention stands the slightest chance of success as long as the existing gangsters control our streets.
So if we want social interventions to have a chance of success, the gangsters have to be removed from the community. Since we cannot remove them by a judicial process, we have to remove them by an administrative process. It is as simple as that. Do we, or do we not, wish to take back the streets of Jamaica from the gangsters? This is the question which we all have to decide.
The human rights community has taken extremely strong objection to the preventive detention proposal. We cannot dismiss their arguments. On the contrary, if we are to be successful in the very difficult situation which we face, we have to respect their viewpoint. We also have to sit down with them and discuss each objection which they raise, point by point. We have to embark on a real and serious dialogue with our human rights advocates and make a serious attempt to find convincing answers to each of their objections.
There can be no doubt that preventive detention is a breach of human rights. This needs to be openly and clearly admitted up front. The issue is whether you are willing to give up some habeas corpus rights in order to protect the very foundation of the rule of law in Jamaica. In every country, the rule of law in the final analysis rests on the monopoly of the use of force by the state.
If the state loses this monopoly over the use of force, then the very possibility of the rule of law disappears. In Jamaica today, the state has lost this monopoly. Justice is administered brutally at the local level by enforcers of one sort or another. In any country in the condition that Jamaica is in, the restoration of the rule of law is impossible without the use of force by the state.
Proportional use of force
The real issue is how to ensure that the use of force is just, proportional and targeted at the real offenders, irrespective of the social and political standing and connections of these offenders. Human rights advocates are essentially arguing that the realities of our security forces and our class and racially divided society mean that this use of force by the state will not be justly administered.
It will not be proportional. It will not be targeted. It will be socially biased against youth who are poor and black. It will be politically partisan. In short, it will be yet another tool in our already large arsenal of oppression. Preventive detention will make matters worse and bring about that very crisis which it is claiming to seek to address.
Let us look at each of these arguments and take them with the seriousness which they deserve. The first argument is that the police are already employing preventive detention by sweeping up hundreds of youth at the community level and holding them without charge for extended periods of time. All preventive detention will do is to make this legal. But this argument is not valid. Preventive detention represents a radical departure from what is being done now.
Under preventive detention the aim would be to stop these broad sweeps in the community and picking up Tom, Dick, Harry and Jane. The point would be to identify the very small group of people at the street level - the five leaders of the extortion rings and the gruesome acts of violence, and detain only those within each street gang. These leaders of murder are well known at the community level and the security forces also know who they are. So identifying them is not a huge problem.
The idea is to isolate them from the rest of the youth and to create a situation whereby we cease the alienation of the majority of youth by broad sweeps of hundreds of youth. The aim of preventive detention is to limit the use of force only to this handful and to make it possible to win the majority of youth over to the side of civil society.
The point also would be to start the detention process uptown. There are uptown figures of a highly dubious character who would be prime candidates for preventive detention. By acting first uptown the message would be loud and clear: class and skin colour will not protect you. Nor will political connections. Preventive detention will be implemented impartially, or not at all.
In this connection, human rights advocates always refer to the State of Emergency and the Suppression of Crimes Act of the 1970s. But they are completely silent about the State of Emergency declared by the JLP under Donald Sangster in 1966. There are studies of this State of Emergency. These studies indicate that the 1966 State of Emergency was exceedingly effective in cutting gun violence. It was implemented relatively impartially. In short, it worked. Human rights advocates must take another look at that 1966 experience before they condemn preventive detention out of hand, based solely on the 1970s experience.
The second argument is that the present security forces are too violence- and abuse-prone to implement such a highly focused and selective strategy. No matter what is intended, indiscriminate brute force will, in fact, become the order of the day. This argument also has much merit. Our security forces are a very blunt instrument. The indiscriminate use of force against poor inner-city youth is a way of life for many in the force. The question is, however, given the real danger of massive abuse, are there measures we can take to reduce this? I believe there are.
If we carefully select and train the squad of security officers who will be responsible for executing this policy; and if we establish operational oversight by respected lawyers and human rights advocates, we can go very far to minimise abuses of preventive detention. The real question is whether our human rights advocates are willing to play a part in this operational control or not.
No easy road
The third objection which is raised is that preventive detention will put detainees in lock-ups which are hellholes. When persons are released from this torture and beatings they will re-enter society bitter and hardened. We would reap a world wind of violence and murder which would make the present crisis look like a picnic. Again, this is a real concern. The answer to this is clear: we must set up special remand centres to deal with detainees.
These must be humane and rehabilitative in character. They must be manned and managed by persons who are committed to humane treatment of people and who will act vigorously to stop abuse. If a strong line is taken against maltreatment of detainees, no matter the murders which they may have committed, we will be able to address this problem.
In conclusion, there is no easy road out of our current crisis. Preventive detention and security measures cannot solve crime and stop murder and violence. Murder and violence in Jamaica are, in fact, a peculiar kind of criminal semi-political protest against the very deeply rooted historic injustices of Jamaican society. If we do not address these injustices, we could have as much preventive detention as we like for as long as we like, we will never get to the root of our problems.
Consensus important
What preventive detention and better security offer is not a solution to our problems of crime. It offers the possibility of a breathing space. In that breathing space, Jamaican civil society can catch its breath, recover some measure of stability and begin to put in place the essential social interventions and address the glaring social and economic injustices.
Consensus on these approaches are vitally important. A dialogue between those who advocate stringent new security measures and those who advocate human rights must be established and pursued in a calm, rational spirit of give and take. If we approach our problems in this spirit we have a very good chance of making the breakthrough into stability that so many Jamaicans yearn for.
Feedback maybe sent to columns@gleanerjm.com.
