Don Robotham, Contributor
Llewellyn and Atkinson
The prime minister's crime plan has left many unsatisfied. However, Mr Golding's approach had one important virtue: it sought to find common ground between the various contending views. Given the acuteness of the crime and social crisis which we face, this approach is crucial. We need the maximum social consensus or the hardened criminals among us will exploit our differences and throw Jamaican society into an even greater crisis than it is in now.
But this consensus-building exercise comes at a high price. While we debate on talk shows, people are being cut down, children included. Mothers in inner cities have to suffer in silence while big and little dons freely have sex with their daughters. Whole inner-city communities live under the gun, in total terror - with no rights at all, human or otherwise. The entire Jamaican society is circumscribed in its movements and traumatised to its core, especially our children. You can forget substantial investment and job creation in such an environment.
difficult dilemmas
We are facing difficult dilemmas which are plaguing many other societies and legal jurisdictions. Claims that the government's proposals are 'criminal', or that the human rights community is adopting a 'powder-puff' approach, are unhelpful, to put it mildly. Solutions which please everybody 100 per cent simply do not exist. We have to give and take. If we approach the problems in that rational spirit, and not in a contentious, accusatory, adversarial manner, we will be surprised at how much common ground exists across the apparent divide.
For example, it seemed to surprise some on the human rights, as well as the preventive detention side, that I am totally against the death penalty in principle, under any circumstances, full stop. It will have zero effect in reducing crime and will only brutalise our society further. We should never use personal or collective outrage, and the instinctive desire for vengeance which it generates, as the basis for making public policy. Second, I have real reservations about the proposal for preventive detention as it was initially formulated. It had two major flaws.
First, it vested the power of detention at the police superintendent level. Second, it did not provide for judicial and/or human rights oversight. The answer to these objections was not to abandon it, as the prime minister has done. The answer was to find ways to impose effective judicial and human-rights oversight on the process and to shift authority to a higher level.
EPIDEMIC OF FEAR
Late last week, Paula Llewellyn, the director of public prosecutions spoke eloquently of the "epidemic" of fear which has enveloped witnesses to serious crimes in Jamaica. She gave a graphic account of a person who had identified a body in the morgue in the presence of several officials. When asked subsequently to come forward and confirm this identification, the witness replied that "even if they send a truckload of soldiers" for him, he was going nowhere. Who can blame him?
This is the crucial and immediate problem for which answers have to be found. This is not a problem of the inefficiency of the legal system. On the contrary, it arises when the legal system works. We cannot mount prosecutions, let alone secure convictions, because witnesses cower in fear. Greater police and judicial efficiency will not ease this epidemic. Witness-protection programmes can't help us here. Few witnesses are willing to accept the upheaval in their lives which this involves. And, in any case, the number of witnesses we would have on our hands is too many.
The answer to this problem from the preventive detention side is - preventive detention and severe bail restrictions. The idea here is to take the accused person out of circulation for a substantial period of time. In the breathing space thus secured, three things would be achieved. First, the ability of the state to effectively assert itself would have been dramatically demonstrated. Second, the gang would have been rendered temporarily headless, with all the demoralisation and fragmentation that ensue. Third, the witness would not only be more secure but, equally important, feel more secure. It is the accused who would now be cowering in fear and on the defensive.
SPECIAL CASE
Yes, the accused is innocent until proven guilty. So let's search for meaningful safeguards. Preventive detention and bail restrictions are intrusions on human rights. Patrick Atkinson raised the valid point that in the US the accused is usually brought before the courts in 24 hours, not 72, "outside of special cases". But does this not beg the question? Is Jamaica, with its second highest world murder rate and climbing, not precisely such a 'special case'?
This does not mean that we have to agree that what we are dealing with in Jamaica is terrorism. I do not think it is, although, if not addressed effectively, sooner or later it will rise to that level. Nevertheless, without splitting hairs, the vast majority of us would agree that, even if this is not terrorism, this is not normality either. We are, indeed, one of these 'special cases' which is an 'exception' to the legal 'norm,' to use the language of the legal scholars.
If our human-rights community rejects the preventive detention and bail restrictions proposals, it needs to put its alternative solution on the table. It cannot deny that this is a real problem or one which greater legal efficiency will resolve. This is simply not the case. Put your own human rights solution to the 'epidemic' problem on the table and, if it is superior, let us go with it. We are pragmatists, not dogmatists.
centuries-old causes
It is no use arguing that preventive detention and bail restrictions or DNA testing do not address the causes of crime and, therefore, will not solve it. A more efficient judiciary and police force will not address the causes of crime either. The causes of crime are social and economic and are centuries old. We should get rid of garrisons but it is not true that garrisons and politicians are the cause of our high murder rate. The upward movement in our murder rate began before our famous first garrison was built, by you know who. High murder rates will survive the dismantling of garrisons. South Africa has no garrisons but has a monstrously high murder rate. Likewise for Brazil. None of this means that the dismantling of garrisons is not urgent and to be pursued aggressively.
None of these measures, including those put forward by human-rights advocates - the separation of powers being only one glaring example - address the deep-rooted social, economic, historical causes of poverty, inequality and crime in Jamaica. Their purpose is to seize the initiative from murderers and to put them on the defensive. They are meant to increase the conviction rate. Their purpose is deterrence of a tactical and short-term nature, but of decisive importance nonetheless.
It is no use saying that if you detain the head of gangs others will spring up behind them. This is true but not so relevant. The reason is that nothing demoralises an organisation and individuals more, including our semi-anarchic gangs, than to summarily lose its head.
risk intrusions
Preventive detention, bail restrictions, mandatory sentencing, DNA databases, identification are all human rights risk intrusions. After all, 'man free' - to take the Jamaican attitude! But their use is widespread and growing in many jurisdictions, including the usual Anglo ones. We are trying to square the circle here - to reconcile the need for increased use of force with the requirements of the rule of law, or, to reconcile the 'norm' with the 'exception.'
Elevating the judiciary over the legislature, as human-rights practitioners worldwide have been accused of doing worldwide, is not an answer. It may be liberal but it is undemocratic in principle. It also portrays the judiciary in idealistic terms. What is in practice the world view and values of a single social stratum is authoritatively imposed on the whole of society, under the cover of the 'majesty' of the law.
It's not exactly news that the judicial committee of the Privy Council is recruited largely from the charmed Oxbridge circle - expressing primarily the social interests, values and world view of the British professional upper middle classes, steeped in liberalism. Everybody knows that there are radically different social and political tendencies on the US Supreme Court, which is why confirmation hearings are so sharply contested and politicised. What happens to these lofty judicial safeguards, for example, when you have a like-minded judiciary of hanging judges? It's not only legislatures which can be backward!
These are not easy problems to resolve. So let's end the polemics. Let us sit down and calmly reason together and address the risks one by one and work out solutions which attempt to meet the objections on all sides. But remember, time is not on our side. While we debate, people are dying. Rome is really burning.
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