Social volcano, vigilance and freedom
Ken Chaplin
Jamaica Observer
October 20, 2003
THE outburst of civil unrest in the depressed community of Canterbury in Montego Bay last Wednesday, in which three young men were killed by the police and one policeman seriously injured, was not surprising. The only surprise is that it took so long to happen. And there is more civil unrest in store unless the government and the private sector move quickly to address the severe socio-economic problems among the poor. No country should expect social stability where so many young people remain idle over a long period. This column saw what happened in Montego Bay coming from as far back as April 10, 2001 when it pointed out that Jamaica was sitting on a volcano which was being mistaken for cool breeze.
The police are to be commended for the superb manner in which they handled the incident, using only as much force as was necessary and not engaging in questionable killings as was the case in West Kingston years ago . The unrest also came just one day after this column commented on the profound Wolfe Report in l993 which, surveying the crime situation nationally, proposed that "government begin to look at the educational structures, social structures, transportation and employment and see whether existing structures are capable of creating the kind of humankind for which crime has no attraction ".
In the meantime, the government should not panic and abridge human rights. Between 1938 when it was formed and up to before the State of Emergency in 1976, the People's National Party (and while it formed the government) had been a formidable champion of human rights from Jamaica to South Africa. The increasing assaults on human rights began in 1976, when Prime Minister Michael Manley declared a State of Emergency which lasted for one year. During the State of Emergency, as revealed later, there were some abominable violations of human rights, including locking up of some Opposition politicians without charges.
There is an axiom which says that "eternal vigilance is the price of freedom". On some occasions since 1976 there have been serious assaults on human rights as civil society slumbered. For example, civil society went to sleep, or so it seemed, in 1995 when the Patterson government pushed through Parliament what is now being regarded as an undesirable piece of legislation. The Evidence Amendment Act was changed to open the way for what is known as "paper trials " so that statements of dead witnesses or witnesses who cannot be found can be admitted as evidence in trials . Belatedly, it is now being argued by lawyers that the amendment was unconstitutional because it provides for written statements to be tendered in evidence and denies the accused the right to cross-examine witnesses, a fundamental principle in the administration of justice .
The current opposition to the law seemed to have been triggered by a case in which a statement purported to have been given by a witness was tendered by the police, but in spite of extensive search, the witness could not be found and there was no record of his death, which led many to believe that the witness did not exist in the first place. The law, as it now stands, can easily lead to abuse and send innocent people to prison or the gallows. The Farquharson Institute is pushing for a change.
Then came the notorious Fingerprint Amendment Act 2003 which is now before Parliament. The proposed amendment, which would give police the authority to order the fingerprinting of suspects held without charge, did not catch civil society napping this time. This authority now resides in resident magistrates. Unchallengable argument was put before the Joint Select Committee of Parliament examining the Act by representatives of the Jamaica Bar Council, the Norman Manley Law School and the Farquharson Institute, which made the argument put forward by attorney general and minister of justice, AJ Nicholson, in support of the legislation without merit.
Jacqueline Samuels-Brown of the Bar Council seemed to capture the mood of civil society when she said she had heard nothing which suggested that it was necessary to take fingerprinting out of the hands of a judicial officer, in whom it is best reposed, and place it into the hands of a police officer. While this writer believes that most police officers would not abuse the provisions of the Act there are others who would have no qualms about doing so in order to get a conviction. One hopes Mr Nicholson will withdraw the proposed amendment to the Act and if he does not, government backbenchers and opposition members will join in voting against it.
Another piece of injustice committed by the state, which almost sent a citizen to the gallows and another to life imprisonment, arose when the police hid vital evidence which could have helped the defence in a murder trial. Fortunately, the case was taken to the Judicial Committee of the Privy Council, Jamaica's final court of appeal, based in London, which overturned the conviction of the two men, set aside the sentence and returned the case to the Jamaican Court of Appeal to determine whether in the interest of justice there should be a retrial. The essential point in the case, which was commented on by this column on November 26 last year under the heading, "Privy Council turns back injustice ", was that the video footage of a 1966 robbery, in which a policeman was killed, was never disclosed to the defence or the prosecution. Had it been disclosed, the men, Ronald Dixon and Mark Sangster, stood a good chance of being freed because they were not in the video footage. Dixon was found guilty of capital murder and sentenced to death while Sangster received life imprisonment for non-capital murder .
After hearing attorneys- at-law, Dennis Daly and Nancy Anderson, who represented the men at the Jamaican Court of Appeal hearing, the panel of three eminent judges, Ian Forte, Henderson Downer and Seymour Panton, went one step further than what the Privy Council suggested: they freed the men without a retrial pointing out that failure of the police to produce the videotape to the prosecution or defence, was a material irregularity which was beyond correction by a retrial. This case put the entire police force into bad light.