No! Prime Minister Golding

Surprisingly, one of the most hotly debated issues in Jamaica this week has been the suggestion endorsed by Prime Minister Bruce Golding that persons who are found to be without their drivers licences are to be arrested and put in jail. This is not a new suggestion and indeed has been voiced, with hitherto no political support, by varying members of the Jamaica Constabulary Force (JCF) for several years. However, Prime Minister Golding has now given currency to this proposal and surprisingly there is a significant body of public support for this draconian strategy. This may well be driven by partisan support for the newly installed but embattled Golding regime or merely reflects the level of desperation being experienced by a frightened populace in the midst of a crime wave. Whatever its antecedence, the ease with which Jamaicans are willing to cede their constitutional rights including their most fundamental right of freedom is truly disconcerting. This is particularly poignant as there are simple and far less intrusive techniques available, particularly technological solutions, to the security forces to bolster their overall effectiveness in solving crime. Further, the JCF does not enjoy the trust of large segments of the Jamaican populace who regard the Police Force as a corrupt and woefully inefficient institution which is more prone to abuse any such latitude, rather than use it as it was theoretically intended.

Simple Solution
Each Police vehicle should be equipped with a computer, so that when persons are stopped in their so-called spot check if the person does not have on his/her person a drivers licence, the mere provision of a name and address should allow that person’s particulars inclusive of their photograph to be readily accessed. This is by no means novel and already obtains in several countries. Hence there is no reason for denying anyone their liberty over a drivers license. Further, Jamaica’s past is checkered with examples of failed attempts of controlling criminal activity with draconian measures. A case in point was the State of Emergency which was declared in 1976 and arising out of which was the dreaded Red Fence and Wire Fence where several persons liberty were denied them in a indiscriminate manner. However by 1980 Jamaica’s murder total soared to 800 persons perpetuating an upward trend which has continued to present even though most of the tenets of the Suppression of Crimes Act are still in use. However what that time period has facilitated is widespread abuse of citizens rights by the Police – unlawful detentions, physical abuse, warrantless raids, extra-judicial killings etc. Similarly, the deficiencies in Police investigative techniques are legendary with a noted example being the presentation of an illegal handgun to a Senior Superintendent of Police on stage at a Reggae Festival by an artiste who himself was wanted for questioning involving a criminal matter in another parish. According to the Senior Superintendent he was unaware that the artiste was wanted by the Police. Similarly, the case of Mr Joel Andem leader of a notorious gang who was at the top of the Police most wanted list. However upon his capture the Police waited almost one week to prefer any charges as there was no outstanding warrant for his arrest.

The simple fact of life in Jamaica is that there is no real will to tackle crime as persons have often advised in colloquial terminology that “…in Jamaica real bad man don’t hide”. This is seemingly borne out by the fact that some of the most notorious persons who have been arrested or killed in recent times were living comfortably in their homes in plain view usually in very affluent neighbourhoods. Further, in several inner city communities guns are openly brandished particularly after dark, drug houses are well known and in one case even had a flag on its roof to advertise its location to its patrons and potential clientele. Indeed, generally speaking an air of lawlessness obtains. Is it credible therefore to continue to claim that only the Jamaican Police remain oblivious to these developments and therefore require extreme measures to treat with the issues at hand?

Indeed, the argument posited by Prime Minister Golding of “straight to jail” for someone who perhaps changes a handbag or a pair of pants as the case may be and genuinely misplaces their drivers license is ill-advised and could well be construed by its critics as contempt for the principles and practices of a modern democracy. If the authorities are truly interested in cracking down on drivers licenses all they would have to do is establish some sort of electronic linkage between the tax collectorates and the Police and when persons go for renewals, if there are outstanding warrants for the person in question, arrangements can be made for their immediate arrest. However, in an environment where motorists who have committed a traffic infraction are routinely given the option of “write or left” – meaning either the police personnel writes a ticket or the traffic offender leaves a bribe, there is need for extreme caution in increasing the latitude of the police. Further, the recent initiatives involving the gang leaders in August Town highlights the extent of the moral decay in Jamaica. In that arrangement which obviously had the assent of the Police which had at least one representative at the ceremony, the gang leaders were allowed to keep their illegal weapons and there was a public signing of a truce of sorts. In the context of the foregoing, the Prime Minister would be minded to be guided by the age-old maxim “Power corrupts…Absolute power corrupts absolutely.” Jamaica has a acknowledged problem with crime, however there is no need for citizens rights to be further compromised because the State refuses to tackle the real issues at hand.

An Open Letter to Prime Minister Golding

Dear Prime Minister,

While we are cognizant of the fact that the Jamaican government is now seized with the prospect of facilitating accelerated development and whereas such a policy thrust is welcomed. there are some concerns which we believe are worthy of your consideration prior to effecting any changes to the development process as currently obtains. Indeed we note that in the past two to three days an unprecedented assault has been launched against the the National Environment and Planning Agency (NEPA) and the Kingston and St Andrew Corporation (KSAC) by investors / developers citing their intent to commence multi-billion dollar investments and claiming that such investments are being stymied by the regulatory arm of the state apparatus.

Whereas concerns about the operations and efficacy of the two entities have been repeatedly raised, due care must be taken that the process is not hijacked and allowed to degenerate into an opportunistic exercise on which success is predicated on the bypassing of the requisite control mechanisms which would afford these and similar developments a degree of sustainability over the medium to long term. Further there are those which posit the view that that the planning focus in Jamaica, should shift from exclusionary zoning to a more inclusive strategy, which would allow commercial and residential developments to coexist. Ostensibly, this should address issues such as travel times to work and play, coupled with matters such as energy usage and so on. This presupposes that Jamaica boasts a well developed urban planning strategy with an effective monitoring mechanism with meaningful penalties. The simple truth is Jamaica has satisfied none of those preconditions, which would be critical in this exercise.

The KSAC now reportedly boasts a total of six (6) building officers who are responsible for enforcement and inspections for the parishes of Kingston and St Andrew and there are similar concerns about the existing capacity at NEPA which boasts island-wide responsibilities. Further in the communities of Seymour Lands, Trafalgar Park and the residential sections of New Kingston, (hitherto referred to as the Trafalgar Council communities) given their centralized location, are no more than 5 minutes away from well established and zoned commercial zones with numerous entertainment facilities precluding the need for the addition of those activities within the residential communities.

Prime Minister, over the past week The Trafalgar Council has had meetings with both NEPA and the KSAC and whereas a process of meaningful dialogue has commenced, the issues which confront us are not localized and in our opinion deserves your intervention as the Minister with portfolio responsibility for Planning and Development in Jamaica. Indeed, some the immediate challenges being faced by the citizens of the Trafalgar Council communities, are dust pollution, noise pollution and a flawed urban planning process which does not functionally afford the residents an opportunity for input. However, the difficulties described are already covered in most part by varying laws but there is almost no enforcement or such enforcement is so selective, as to be deemed arbitrary.

Specifically, the issues which confront the residents which fall under the jurisdiction of the Trafalgar Council are as follows:

Setback distances: The setback ratios (distance between the building and the property line) has been unilaterally altered to five (5) feet per floor which routinely leads to issues of overshadowing and overlooking adjoining properties coupled with loss of privacy particularly in the current circumstances where there are extraordinarily high plot-ratios (plot ratio defines the total floor area of buildings permitted to be erected on a site). Further in the absence of effective monitoring by the regulatory agencies, in several cases developers breach these guidelines, with very little recourse to affected parties. Indeed in several cases, the setback distances are so low and plot ratios so high that the construction sites cannot accommodate their own equipment, materials or waste on-site and therefore developers have resorted to use the sidewalks and roadways as their storage facility. There is also no mitigating strategy to treat with dust pollution emanating from these construction sites and hence there is an increase in respiratory ailments within the Seymour Lands and New Kingston communities in particular as there has been an appreciable deterioration in air quality;

Density Ratios: This has again been unilaterally altered by the regulatory authorities from 30 to 50 habitable rooms per acre in the vicinity of sewer mains. This has been a particularly egregious example of the abuse of state power, as the citizens of the Seymour Lands in particular rejected this notion when it was proposed at a public consultation by NEPA in 2006. However, the effect has been the preponderance of 4 storey apartment blocks which is not only out of step with the prevailing ambiance of the communities but make little to no provision for any green areas whatsoever. The matter has been further compounded by the fact that the Soapberry Treatment Plant is only now being commissioned, which means that the previous utterances about environmental concerns, justifying the laying of sewer pipes were a mere facade to facilitate increased densities. Indeed prior to Soapberry there was no functional treatment plant in Kingston and St Andrew for several years.

Poor Supporting Infrastructure: Whereas the regulatory bodies have approved these higher density developments in The Trafalgar Council communities, the supporting infrastructure has not been upgraded to accommodate these developments. Water supply has been a particular concern in this regard, as no new supplies have been brought into the Trafalgar Council Communities, despite a plethora of high density developments receiving state approvals over the past three (3) years. However according to data provided by the National Water Commission (NWC) and reported in the Economic and Social Survey (2008), water production for Kingston, St Andrew and St Thomas declined by 7.2 percent in 2006 and increased by a mere 2.7 percent in 2007. In the meantime, the number of connections in the above named parishes, increased by a whopping 14.9 percent in 2007 alone. This explains the low water pressure or in other cases the absence of water from the affected communities, a situation which worsens with the addition of each new development. Similarly, the roads are deteriorating considerably under the increased traffic flows and atrocious rehabilitative work facilitated by the KSAC and the National Works Agency (NWA).

Poor Enforcement Mechanisms: The communities are buffeted by numerous breaches of the building codes coupled with breaches associated with improper property usage. There is the instance of a sensuous massage parlour being given State Approval and even though the error was acknowledged no remedial action has to date been taken. There are other instances where buildings are constructed on top of boundary walls or extended to adjoining boundary walls. However, when challenged the regulatory agencies advise that given budgetary constraints and the fact that even when they prevail in a court of law any financial award is turned over to the Consolidated Fund, there is no particular impetus to take legal action. In fact in recent times, the State regulatory agencies have increasingly been seeking to shift the responsibility to individual citizens to take remedial action. Similarly, where applicable, where there is need for Discharge and/or Modification of Restrictive Covenants, this is supposed to be determined prior to the commencement of construction, but in most cases this is done after the fact and with no reference to the owners of adjoining properties.

Creeping Commercialization: The fact, that the Trafalgar Council communities are in fact zoned for residential usage only, has not served to deter the scourge of creeping commercialization. With dead frontages and no human activity by night in some instances, this has led to increases in criminal activity and has forced the residents in the main to rely on private security firms to provide additional support to the Police Force. In other cases where business activity occurs primarily at night, there are routine problems associated with night noises and poor sanitary control coupled with loss of privacy and on street parking. In the days there is a considerable increase in traffic resulting from the commercial entities operations and a preponderance of on-street parking with resulting impact of impeding access to residences

Prime Minister, we therefore appeal to you as you prepare for what we are confident will be another thought provoking presentation in the Budget Debates, that due consideration be given to the issues raised here, which not only affect the named communities but are replicated across other urban centres. Jamaica prides itself as operating a modern democracy, but such modernity dictates that a well developed process of consultation between State and citizen must be observed and cannot be routinely ignored outside the electoral periods. It is therefore believed that with the citizens being included in the development process and their views being solicited and given weight to in the approval process, will lead to an enrichment of the process of development while by no means interfering with the timeliness of the decision making process. In that regard, we are cognizant of your expressed intent to enact a single piece of legislation that is applicable to all regulatory agencies in the process of development. However we would suggest that for the new legislation to be worthwhile, it should clarify the position on public consultation in an unequivocal manner and encompass provisions for compulsory consultations with the citizenry. Failure to accept the tenets of a modern democracy and continuing to relegate the role of the citizen to be a mere bystander in the process of development is to undermine the political process and foster social instability with its attendant ills.

Jamaica: The 90-day Approval Process Revealed

Flawed Urban Planning?: Impact of the 5 ft. per floor setback distance (Click on pic. for closer view)

Jamaican Prime Minister Bruce Golding, is insistent in his desire to restrict the building approval process to 90-days and by so doing, revolutionize the development process in the island. Indeed according to Mr Golding, he is shifting the impetus in the development process from the developer to the regulators. But what are the processes to be completed during this 90 day interval? Significantly, these processes are outlined in Ministry Paper 7 which was tabled in 1999 and which provided detailed guidance on the monitoring framework necessary to ensure that the 90-day target was achieved. Implementation of Ministry Paper No. 7 has been deemed an integral part of the Development Approval Project within the Ministry of Industry, Investment and Commerce which has obviously been embraced by the new Golding regime.

Under the new dispensation it is apparent that the Office of the Prime Minister (OPM) has the overall "ownership" of the development approval process. Specifically, based on press reports OPM will be required to collect monitoring information on the development approval bodies' achievement of the 90 day approval processing target. The Planning and Development Division is the lead Department at OPM in this regard. The Town Planning Department must provide information to OPM regarding outstanding applications. In addition, the Town Planning Department will make recommendations on applications where one or more commenting agency fails to provide recommendations within the agreed time frame. The detailed breakdown of the 90-day target outlined in Ministry Paper No. 7, 1999 is shown in Table 1.

Table 1: Maximum Time Allocations Necessary to Achieve a 90-Day Assessment Process

KSAC/Parish Council/Local Planning Authority sends completed application to Town Planning Department. (part of NEPA) - 2 weeks (This period is not included in the 90-day calculation)

Town Planning Department receives completed application from Parish Council/KSAC/Local Planning Authority and sends application to critical commenting agencies - 2 weeks (The 90-day target commences from the time when a completed application is received by the Town Planning Department)

Commenting agencies assess application and make recommendation to Town Planning Department - 3 weeks

If applicable Town Planning Department takes application to the Subdivision Committee or takes a decision on the application - 2 weeks

Town Planning Department advises Parish Council/KSAC/Local Planning Authority of its recommendation and advises Ministry of Environment and Housing (now OPM) of outstanding applications - 1 week

KSAC/Parish Council/Local Planning Authority makes a determination on the application and advises the applicant - 4 weeks

Ministry Paper 7, 1999 & Author's updates

However this process obviously excludes any meaningful interaction with affected third parties, meaning neighbours and persons within the footprint of the development project. It also seemingly excludes the usage of Environmental Impact Assessments (EIA’s) and would make redundant the current 3-week time interval stipulated by NEPA for public notice to discuss the findings of EIA’s. Also, there is no stipulation that matters relating to the Discharge or Modification of Restrictive Covenants should be dealt with as a condition precedent for project approval. There is also an absence of a prescribed oversight procedure despite so much power being vested in the Town Planning Department as well as any provision for appeals by aggrieved parties.

Whereas the impatience of the Government of Jamaica to facilitate increased investment is quite understandable due care must be exercised that long established industry and national safeguards are not sacrificed on the altar of expediency. Already some unilateral decisions have been made by the State, regarding set-back distances and density ratios, the legality of which are likely to be challenged in the courts. Further there is need for continued and expanded dialogue with the citizenry in the process of development as is dictated in any modern democracy. Failure to adhere to the basic tenets of good governance, would only lead to a continued process of disconnect between the State and the citizenry and undermine the requisite partnerships that are deemed critical to the development process.

NEPA Transferred: Golding’s Super-Ministry Comes Of Age

Come April 1, 2008, the National Environment and Planning Agency, NEPA, will no longer be classified under the Ministry of Health and Environment but under the Office of the Prime Minister. That’s the stated intent of the Government of Jamaica as outlined in the Estimates of Expenditure for the year ending 31st March 2009 and tabled in the House of Representatives by Finance Minister Audley Shaw on Thursday, March 27, 2008. Indeed, the document explicitly states that functions under (Expenditure) Head 4200 related to the Environment, have been transferred to the Office of the Prime Minister effective April 1, 2008. Further within the document there is a repeated reference to the Ministry of Health as “formerly Ministry of Health and Environment”. However Minister of Health, Rudyard Spencer is seemingly unaware of any such development, stating on the TVJ 7 pm newscast on Friday that "I don't know that to be the case, it might have been a typo, Environment is still there (under the Health portfolio), yes".

The 2008/2009 estimates also reveal that the allocations for the Office of the Prime Minister’s (OPM's) budget has been fashioned to include projects being implemented by (NEPA). Similarly the Land Portfolio has apparently been stripped from the Ministry of Agriculture and transferred to OPM. This would affect most notably the reporting relationship of the National Land Agency (NLA).

This is however consistent with the utterances of Prime Minister Golding as he continues to seek to create a more investor friendly climate and really dovetails into the Planning and Development portfolio which he had also assumed from the inception of his regime. Further, it is not expected that this is the end of the reformation process for NEPA, as the Prime Minister earlier this year had stated that it was his intent to establish a separate Environmental agency. NEPA as currently constituted, is basically an amalgamation of the Natural Resources and Conservation Authority (NRCA) and the Town and Country Planning Department, both of which are already governed by separate acts of Parliament, making any plans to revert to its initial state relatively easy.

Nevertheless, there are concerns that Prime Minister Golding may be taking on too many line areas of responsibility and therefore hindering his ability to focus on overall policy issues. Already the Prime Minister has assumed responsibility for Defence, Planning and Development, Local Government and now Lands and the Environment. Interestingly, under the previous regime, that portfolio mix was handled by up to five (5) separate Cabinet rank Ministers including the Prime Minister. For his part PM Golding has three Ministers of State (Shahine Robinson, Robert Montague and Daryl Vaz) and one Cabinet rank Minister without Portfolio assigned to OPM (James Robertson).