Constitutional attorney John Clarke is urging Jamaicans who were detained under states of emergency (SOEs) to seek legal advice following the Constitutional Court’s declaration that the measures imposed by the Andrew Holness administration from 2018 to 2023 were unconstitutional.
The Government said it would appeal the decision.
“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 during this period,” said Clarke on Friday, hours after the ruling.
Clarke warned that the public may bear a significant financial burden after pointing to an SOE-related case in 2022 in which the Supreme Court awarded St James resident Roshaine Clarke approximately $18 million after ruling that his detention breached his constitutional rights. That case is being appealed.
“If we multiply that $18 million just by a hundred persons who [may be claiming], it’s a very hefty bill that the public would have to foot just because somebody thought it was useful to engage this process – and that hefty bill could be more than $1.8 billion,” said Clarke, who is also chairman of human rights lobby Jamaicans for Justice.
“There is a human cost to the declarations of these states of public emergency,” Clarke added. “More than 500 Jamaican citizens had their liberty taken away from them whilst they were detained in the same conditions as persons who were either one convicted of crime or two charged with criminal offences.”
Up to June 2022, human rights advocates had estimated that more than 11,000 people were detained for extended periods under the SOEs since 2018. But figures published by the Office of the Public Defender placed the number of SOE detainees at more than 4,000, though the agency acknowledged that not all police divisions provided data on the number of people in their custody.
‘IMPORTANT CLARIFICATION’
Meanwhile, the Office of the Public Defender yesterday acknowledged the court’s ruling, saying it provides “important clarification on the constitutional framework governing emergency powers in Jamaica”.
It added that while it recognises “the significant challenges posed by crime and violence in Jamaica,” its duty is to investigate actions where persons have sustained injustice from administrative actions or suffered infringement of their constitutional rights as a result of actions taken by authorities.
“In fulfilment of our statutory mandate, the Office of the Public Defender will continue to receive and investigate complaints relating to alleged infringements of constitutional rights by state authorities, including any arising from measures implemented to address crime and violence,” it said in a statement.
The Constitutional Court sided with Dr Dayton Campbell, general secretary of the People’s National Party (PNP), ruling that a series of SOE declarations from 2018 to 2023 were unconstitutional, void, and a breach of fundamental rights and the separation of powers.
The court found that several of the SOEs were not made for any purpose contemplated by Section 20 of the Constitution and were not demonstrably justified in a free and democratic society.
Justice Andrea Pettigrew-Collins issued the unanimous decision during a hearing yesterday. The other judges who heard the case were Justices Bertram Morrison and Simone Wolfe-Reece. Morrison ruled against the Government in one of the earliest SOE cases in 2020.
The ruling represents 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.
This latest court defeat 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.”
SERVING ATTORNEY GENERAL AT THE TIME
Malahoo Forte served as attorney general from March 2016 to January 2022.
In their 44-page opinion, the judges said “the Government failed to honour the counsel of prudence”.
“This court has determined that the SOPE[s] (states of public emergency) 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 SOPE that ought not to have been imposed in the first place,” they said.
Campbell filed the claim in 2023. He argued that 17 SOEs, including three rolling SOEs in late 2022, amounted to an unconstitutional bypassing of Parliament, which, under Section 20(3) of the Charter, must approve extensions beyond 14 days.
Based on the Constitution, at least one opposition senator is required for SOE extensions, but, by late 2022, the Opposition had stopped supporting the measures, arguing that their routine use violated what the framers’ intent.
The court agreed, ruling that the Government violated the separation of powers by repeatedly declaring new SOEs in the same areas. It called the move “a method of circumventing the constitutional provisions and process”.
Faith Hall, director of state proceedings, who argued for the Government, had urged the court to dismiss the claim because Campbell lacked legal standing. However, the judges rejected that argument, affirming that a citizen may bring a public interest claim for constitutional review.
TESTIMONY
Hall relied on testimony from Deputy Commissioner of Police Clifford Blake, who said SOEs were necessary to disrupt gangs and restore order.
However, the court described his justification as 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 SOPE[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.
They added: “There is logic and good sense in the assertion that a state of affairs which persist over a period of years cannot properly be described as an emergency.
The court also noted that in many instances, SOEs had no measurable impact on crime reduction and further that Blake’s evidence “makes no reference at all to the first 10 declarations that are the subject of these proceedings, and when it refers to the circumstances that preceded a specific SOPE, it does so in very general terms”.
The judges said Blake’s reference to crime reductions in areas with SOEs “amounts to an attempt at ex post facto justification or, to put it another way, an assertion that ‘the end justifies the means’.”
They added that, “such approach is not within the spirit of the requirement for demonstrable justification, or even reasonable justification”.
The judges argued that the rule of law requires that the means by which an end is pursued be inherently justifiable.
RULING WELCOMED
JFJ welcomed the ruling, calling it “a reaffirmation of the rule of law and the protection of fundamental rights”.
The group claimed that SOEs had disproportionately harmed poor, inner-city men, citing more than 100 complaints of detention without charge received between 2018 and 2020.
“The human cost of these unconstitutional measures is profound,” JFJ said.
The PNP hailed the outcome as “a resounding victory for the Constitution, for the rule of law, and for the people of Jamaica,” adding that the SOEs were unlawfully used as a tool of routine policing.
“This win belongs to every Jamaican who values justice and constitutional order,” the party said.
However, the Government rejected the court’s conclusion, saying it was satisfied with the conduct of Parliament, the Cabinet and the governor general in issuing the SOEs and would appeal the ruling.
“The Government of Jamaica acknowledges the Supreme Court’s ruling… [and] is undertaking a thorough review of the legal and constitutional implications of this decision in preparation for its appeal,” said Attorney General Dr Derrick McKoy.
The Government defended the SOE policy as effective in reducing violent crime, saying the country has recorded a major decline in murders and other major crimes since 2024.
“The implementation of states of public emergency resulted in the reduction of murders and saved lives,” read a statement from the Office of the Prime Minister.
Michael Hylton, King’s Counsel, and attorneys Duane Allen, Alexis Robinson and Daynia Allen represented Campbell.
Hall and attorney Matthew Gabbadon represented the Attorney General’s Chambers.
The case was heard in November 2024.