When any government signs an agreement, the people have a right to know what it says. That right is even stronger when the arrangement runs into serious legal obstacles in the partner country.
On September 18, the United States Court of Appeals for the First Circuit unanimously rejected the Trump administration’s third-country national deportation policy, the policy Jamaica signed on to when the Government agreed to receive people the United States decides to send here. That policy’s foundation has now been rejected at the source, yet the government of Jamaica still refuses to tell us what the MOU commits us to.
That refusal was indefensible before the ruling. It is indefensible now.
The Government of Jamaica says the TCN MOU it signed with the United States will not be released because the United States does not agree to publication. That is completely unacceptable, and I say so as someone who values Jamaica’s relationship with the United States. We cooperate on security, trade, tourism, and migration, and we should. But cooperation does not suspend a government’s first duty to its own people. The Government of Jamaica is accountable to the people of Jamaica. It is not accountable to Washington, and it is certainly not bound to keep a policy-based MOU secret.
Given the US court decision to strike down the policy underpinning the administration’s arrangement to rapidly deport individuals to third countries with little to no advance notice and without a meaningful opportunity to contest the destination, our Government must tell us plainly: does the MOU still operate? Are transfers being planned while the Trump administration’s appeal and the courts further weigh the programme’s legality?
What is Jamaica’s exposure if the Government takes in people under an arrangement that is in doubt at its source? And, what if the Supreme Court upholds the appeals court’s decision? What if the Supreme Court goes further than the appeals court in support of deportees? And, why would our Government stay party to a scheme the United States may not lawfully carry out?
The Government should make the MOU public.
Further, conflicting reports have emerged about the agreement’s genesis. Minister Horace Chang told Parliament that Washington requested the arrangement. A US Embassy diplomatic note obtained by The Gleaner said Cabinet Minister Audrey Marks proposed an arrangement to receive up to 10,000 people. The Government disputes that reading but has not disputed the 10,000 people associated under Marks’ proposal. The remedy for competing accounts is not to trust whichever story the Government prefers on a given day. The remedy is to release the documents; documents resolve disputes that verbal assurances cannot.
A more disturbing issue remains. Dr Chang told Parliament that, though the Government would not table the MOU, it would publish the operational procedures once finalised. Those procedures are now finalised, and Foreign Minister Kamina Johnson Smith has confirmed the MOU will not be released. Yet, The Gleaner revealed that comparable agreements are already public. US third-country arrangements with St Kitts and Nevis and Antigua and Barbuda are publicly available. These agreements plainly can be published. What makes the one our Government signed different? If the United States specifically requires confidentiality in this case, the Government is duty-bound to say precisely what legal or diplomatic obligation prevents disclosure and, if only certain provisions are sensitive, why the rest cannot be released; “’The Americans don’t want us to’ is not an answer.” It is spurious spin, more so now that an American appeals court has said the Americans may not lawfully proceed.
Further, the Government needs to explain the substance of the arrangement. Who exactly have they agreed to bring here? Why here, given Jamaica’s considerable social and economic deficits and widespread suffering? Where will the people be housed, and at whose expense? Will they be free to roam Jamaica at will, as Minister Chang has said? Who bears legal responsibility for them? What screening and documentation capacity does Jamaica have to ensure the Government can be certain that no one with criminal antecedents is put on a flight to Jamaica under the arrangement, when US officials themselves admit they cannot screen people with no papers and our capacity is far weaker than theirs?
On the day of the court ruling, The Washington Post attributed this statement to administration officials: “Third country deportations are the only way to remove the most difficult to deport immigrants, including violent criminals who have committed rapes and murders.” Minister Johnson Smith has said Jamaica has not agreed to accept criminals. But, what if criminals are discovered among those who pass screening and are housed here? What has the United States promised in return? Has the Government received what’s promised, or is it withholding that too? The MOU answers all of this.
This is not a Jamaica Labour Party (JLP) versus People’s National Party (PNP) matter, and the Government cannot treat it as one. Had a different government signed a major international agreement and then hidden it from Parliament and the public, we would make the same demand, and so would this government in opposition. If a government can bind Jamaica internationally and then say, “We will not allow you to see the agreement because another country objects,” it creates a dangerous precedent, one made worse because the objecting country’s own courts have now rejected the policy upon which the agreement is built.
The demand is clear, and the ruling makes it urgent. The Government needs to clarify if the MOU still stands after the US court’s decision. Let the elected representatives scrutinise it in Parliament, and let the people read it.
Kay Osborne is a good governance advocate and civic commentator. Send feedback to Kmosborne1990@gmail.com.
