Let us guard against a State of Exception
The government of the day has demonstrated that it has the intellectual wear-withal, social capital and requisite chutzpah to make the necessary decisions and offer the requisite leadership to take us through these unprecedented times. As responsible and educated citizens we are obliged to follow the advice, directives and orders of the government. In these exceptional circumstances in the absence of properly functioning democratic institutions it is our duty to ensure that we do not facilitate the creation of a perpetual state of exception by our silence or willful blindness.
In short, a state of exception is a concept in the legal theory of Carl Schmitt, similar to a state of emergency, but based in the sovereign’s ability to transcend the rule of law in the name of the public good. On the face of it no one can credibly argue that the government has been acting in the name of anything but the public good as we are experiencing a crisis of “pandemic” proportions, a type of which we have never experienced.
This situation that faces us is not a distant report of a war in Syria , or the Rwandan genocide,or a famine in Ethiopia or at worst climate change that. would traditionally only occupy a passing moment in western mainstream media. Everyday we are fed a consistent diet of how many hundreds now thousands of persons are dying in real time across the world. What has struck fear into well thinking Jamaicans is the thought of the same sort of exponential growth of the spread of the virus and death that we are likely to see. This is all in the context of our already struggling health care system.
In this state of fear where people feel they will likely become victims of the pandemic and possibly face death, according to the principle of the rationality of fear they will do whatever it takes, even extreme measures, to defend themselves. This may also include supporting a leader who may opportunistically take advantage of such a fear. While we do not have a leader that fits this description we do not want to create a space or the opportunity to create one.
I am personally happy and proud of the leadership we have leading us through this moment in time. From all the pronouncements being made by the. administration, they seem to be doing everything possible to hold themselves accountable to the Jamaican people while making the tough decisions. Unfortunately however, a strong democracy cannot be maintained hoping that the leaders will hold themselves accountable. For a constitutional democracy to flourish there must be the counterbalance of the different arms of state and democratic institutions such as a free credible press, the opposition and “the articulate minority” and spaces for independent and critical thought.
Dr. Lloyd Barnett, one of the foremost domain experts on constitutional law, on behalf of the Independent Jamaica Council for Human Rights. wrote a piece in the Jamaica Observer questioning the constitutionality of some of the actions of the government. According to the Observer he questioned whether the Government has acted within the law in its response to the COVID-19 pandemic and argued that the Government has “ignored” steps outlined in the Charter of Rights on how to safeguard individual rights while responding to a public health emergency.
Robert Collie, some one whom I consider to be an independent legal mind, in his usual pointed and no bars held style wrote on facebook in response to Dr. Barnett’s article the following:
“Do they realise we are in an unprecedented public health crisis? No wonder people. can’t stand lawyers or human rights advocates, they seem completely oblivious to reality. You would think Dr. Barnett and other elderly persons would welcome the. government’s initiative but alas not everyone looks out for their own best interest much. less that of the country. Smh what a disappointment.”
Someone not known to me in response to Collie’s comment stated
“Of all the things happening now, this is what he has taken an issue with. Who even cares?”
Also in response to Dr. Barnett’s article Clyde Williams a card carrying member of the opposition and demonstrated independent thinker tweeted:
“I am happy Dr Barnett has raised this issue. I have ignored dealing with it frontally and have only hinted and implied for fear of being accused of being partisan.” Emphasis. mine.
I have not formed an opinion as to whether the actions of the government are constitutional as that is not the issue I seek to address at this time. It is clear however based on recent decision coming out of South Africa, the case of Ex Karel Willem van Heerden. Rathe that was handed down on the 27th day of March 2020 by Roelofse AJ that addressed the implementation of its Disaster Management Act, the constitutionality of the actions of the government or the act is self is worthy of consideration. (Interestingly the court found in favor of the government)
The issue that I seek to address is the basis upon which the opinion of this recognized domain expert on the constitution has been summarily dismissed. The premise appears to be that as long as the government acts in the public good in response to this global crisis it can deliberately and knowingly. transcend the law as no one really cares about anything else. This line of thinking is dangerous and must serve as a serious red flag for those who cherish our democracy.
Not only are we facing a precarious health and economic crisis but the foundations of our democracy are similarly on shaky grounds as the majority of our democratic institutions have been for one reason or the other impaired:
There are several states of emergencies that now exist across Jamaica that severely curtailed our human rights and given the state extraordinary powers
Simultaneously there is a Disaster Risk Management Act that has also been invoked that severely curtails our human rights and gives the government extraordinary powers.
The police are rolling out several technologies that would allow for enhanced mass surveillance capabilities
Our judiciary, one arm of our constitutional democracy while still operational has significantly scaled down its operations.
We no longer have a viable or credible opposition(in my opinion which is consistent with the recent polling that has been done).
One of our oldest institutions and bulwarks of our democracy. the Gleaner has managed to single handedly severely undermine its own credibility.
Our universities have been closed with no public pronouncements, that I have heard of, as to how the delivery of educational instructions will be continued.
We are now faced with a situation where the most trusted source of information, for me, at this time, is the government by virtue of the social capital they have built up. This social capital can be attributed to their consistent and transparent messaging , wide scale. communication efforts and their openness to accept questions and the bipartisan approach they have sought to build. Everything an effective democratic government is supposed to be doing. This type of social capital is critical and necessary for the government to be able to effectively lead us through this crisis. Without having independent third parties such as an effective opposition any other actor in. our democratic construct to challenge or hold the government accountable we in effect create a state of exception.
Prior to now the average citizen could only really hold a government to account at the polls and outside of that we relied on our democratic institutions. Today however we have the power of social media where everyone’s voice is counted and resonates. What we have today are the communication and collaboration platforms that allow us to create, share and discuss our ideas. While participating in a zoom meeting or watching an instalive may be new for the majority of us let us use the social communication platforms to not only consume content, use for work and entertainment, but let us use these platforms to inform ourselves and have intellectual discourse and where necessary challenge the powers that be by speaking truth to power.
Let us be responsible citizens and play our role in the maintenance and growth of our fledgling democracy by engaging in constructive debate and critique and challenge the government where possible. Let us not cower in the face of an effective government for fear of getting backlash. With the enablement of technology we are now the vanguard of our fundamental rights and freedoms. Let us not become the victim of the rationality of fear and populism to blindly dismiss reasoned views. To support the government and be good citizens let us not blindly allow social distancing to become social silencing.
We don’t want to lose the significant economic and social gains we have made as a people but more importantly we do not want to lose the gains we have made as a constitutional democracy.