5 unlawfully detained under SOE to seek damages

5 unlawfully detained under SOE to seek damages

Senior staff reporter

Saturday, September 19, 2020

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LAWYERS for the five men who challenged the State on the legality of their detention under the recently ended states of emergency (SOEs) say they will now begin the process of getting a final edict from the courts to determine just how much the State will have to fork out to compensate the men.

This after Supreme Court judge Justice Morrison yesterday indicated, in a draft judgement, that the men’s detention was “unlawful”.

“He noted that the claimants’ constitutional rights and the constitution itself is being breached by the current detention and executive detention system. That, in my view, means that their detention is not merely unlawful but it is unconstitutional,” attorney John Clarke, one of the lawyers representing the men, told the Jamaica Observer yesterday.

“[The final Order] will determine how we proceed. What I am hoping is that it will allow us a roadmap in terms of how they will seek some compensation for their unlawful detention,” he added.

Nicholas Heat, Courtney Hall, Gavin Nobel, Courtney Thompson, and Everton Douglas were all released from custody with the ending of the SOEs in August ahead of the September 3 General Election. Some had been held for close to two years and none had been charged with an offence. They challenged the S on the legality of their detention and the matter was heard by Justice Morrison over several days in July.

Douglas, according to the court, was held for 177 days. Heat was held for 361, Hall for 395, Thompson for 365, and Nobles for 431 days.

Yesterday the judge noted in the draft document that the detention time of each petitioner was quite remarkable, considering that none of them have been charged for an offence in law.

He further noted that there is nothing within Jamaica’s constitutional framework which permits a minister of Government to issue a detention order. He however made no order as it related to the costs sought by the lawyers in the original application, but had said he would be giving “further orders”.

Clarke, in a submission to the court in July, had argued that the Government’s lawyers failed to show whether or not the laws of Jamaica support the detention of the men for a protracted period without charge. He further contended that the holding of individuals indefinitely under a state of public emergency, at the will of the prime minister and his Cabinet, is not upheld by the Jamaican Constitution.

“It cannot be for the executive to arbitrarily determine the suspension of the rights of persons. It is for the court to determine,” Clarke stated. He further said that it was also for the court to determine that there was, in fact, an emergency. According to Clarke, an “emergency” as defined under the constitution is triggered when life is threatened, and cannot be triggered by an ordinary “situation”. He argued, too, that Jamaica’s “Constitution only points to a period of public emergency, not a state of public emergency”.

Speaking with the Observer yesterday he said the former detainees were “happy” with the judge’s declaration.

“We have persons who were detained for almost two years without charge or conviction. We are hoping that moving forward, as a country, families are not subjected to the emotional pain and trauma that these five families were subjected to. We had men who were plucked out of their beds and out of their children’s arms and their spouses’ arms and held for more than a year without a criminal charge or conviction,” he added.

The attorney said they were also preparing themselves, in the interim, to mount a further defence if the Government appealed the court’s ruling.

“It is possible the Government will try to appeal and if they do, we will make preparations to have it defended at that stage. If at any level this is overturned [the five men] are prepared to go to the Privy Council if need be,” said Clarke.

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