KINGSTON, Jamaica, CMC—On Friday, the main opposition, the People’s National Party (PNP), welcomed the Constitutional Court’s decision that the several states of public emergency (SOEs) declared by the Jamaica government over five years were unconstitutional.
The PNP’s general secretary, Dr Dayton Campbell, had brought the case, and the court ruled that several SOEs declared between 2018 and 2023 were not made for any of the purposes outlined in Section 20 of the Jamaican Constitution.
Opposition Leader Mark Golding said that the three-member panel of judges, who had deferred their ruling in November last year, agreed that the multiple and extended use of SOEs between 2018 and 2023 as a routine crime-fighting tool violates the Constitution’s extraordinary emergency powers.
The Constitutional Court ruled that the Andrew Holness government breached the separation of powers principles in the Constitution when it rolled out a series of states of public emergency (SOEs) in late 2022 without seeking parliamentary approval to extend them beyond 14 days.
In delivering the oral judgment, Justice Andrea Pettigrew-Collins said the proclamations issued on November 15, December 6, and December 28, 2022, effectively allowed the executive to usurp a constitutional power reserved for Parliament and were therefore void.
The court found that the SOEs declared on 15 separate dates — including January 2018, March 2018, April 2019, June 2020, and as recently as February 2023 — were not made for a constitutionally valid purpose, were not demonstrably justified in a free and democratic society, and were inconsistent with the Jamaican Constitution.
It also ruled that three so-called rolling proclamations made by the Governor General in November and December 2022 amounted to a breach of the separation of powers, as they effectively bypassed Parliament’s role in extending emergency powers beyond the constitutionally permitted 14 days.
The declarations mean the challenged SOEs were void and unconstitutional.
Golding, describing the government’s use of SOEs as a sustained abuse of extraordinary executive power and a serious threat to the rights and freedoms of Jamaicans, said that the court’s ruling affirms that no administration can suspend freedoms under the pretext of public safety without satisfying the constitutional safeguards of necessity, proportionality and parliamentary accountability.
“The SOE, which is the Constitution’s last-resort mechanism against crises that threaten to subvert the democratic order of the State, was unlawfully deployed by the Government as a tool of routine policing, often incorporating entire parishes and sometimes being renewed without parliamentary oversight,” Golding said in a statement.
He noted the recent decline in the country’s murder rate, which he said had been achieved through targeted law enforcement measures and not the recurring SOEs.
“Jamaica’s long-term security hinges on appropriate policing strategies, robust democratic institutions, and community-led solutions, achievable without unconstitutional violations of fundamental rights and freedoms.
“This win belongs to every Jamaican who values justice and constitutional order. The PNP brought this case to defend the constitutional rights and freedoms of the Jamaican people because we believe there are ways of successfully overcoming Jamaica’s problem of violent crime without violating the Constitution.
“We will remain steadfast in advocating for holistic, rights-respecting strategies to secure our communities and strengthen Jamaica’s democratic system of government,” Golding said.
Justice Pettigrew-Collins said the court does not accept that only the basis of standing to bring a constitutional claim is where the claimant seeks to mitigate the breach of his rights. She said the claimant in this case is standing because he is a citizen with a sufficient interest in upholding the Constitution and the rule of law.
The judge said that introducing section 20, sub-section 5 of the Constitution, created a new avenue to invoke the court’s jurisdiction to review the State’s actions that may breach specific constitutional provisions.
“The defendant has not put forward evidence to demonstrate that circumstances of public emergency existed on the occasion when states of public emergency were imposed. The evidence… demonstrates that states of public emergency are being utilized as a standard method of policing because normal policing methods have not been sufficiently effective in cauterizing the high crime rate”.
She said that having determined that the states of public emergency were not imposed for a proper purpose within the meaning of section 20 of the Constitution, “we consider that in any event, the State has not shown that the imposition of states of public emergency with its consequent infringement of constitutional rights is a response that is proportionate to the circumstances.
“We consider that the specific provisions of the Emergency Powers Regulations 2023 addressed by King’s Counsel (Michael Hylton) are reasonable limitations on constitutional rights during a public emergency. The separation of powers doctrine extends to the relationship between the executive and the legislature.”
Justice Pettigrew-Collins said the present constitutional arrangements require the participation of the executive and legislature to properly secure an extension of a state of public emergency.
“Therefore, the declaration of a new state of public emergency within days of the expiration of a state of public emergency in circumstances where it could not be said that a new emergency arose is a method of circumventing the constitutional provisions and process.
“The SOE is a tool under the Constitution that gives the security forces the power to search without a warrant and to detain persons longer than usual.
Section 20 allows the governor general to declare a state of emergency where “action has been taken or is immediately threatened by persons or bodies of persons of such a nature and on so extensive a scale as to be likely to endanger the public safety of the community specified in the schedule,” Justice Pettigrew-Collins said.
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