State of Emergency… (un)Ltd
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This is the second part of my blog on the 2011 State of Emergency in Trinidad and Tobago… Didn’t read the first? Find it here.
What About Those Emergency Regulations You Keep Harping On?
By Legal Notice 163 of 2011, the President issued Emergency Regulations to cover the period of Public Emergency. They can be found in their entirety courtesy the Government news site.
Yes, But What are They?
Under the constitution, when a period of Public Emergency is declared, the President may make regulations to deal with the situation that has caused the state of public emergency. For those of you who enjoy quotes, here is s.7(1) of the constitution.
“7. (1) Without prejudice to the power of Parliament to make provision in the premise. but subject to this section, where any period of public emergency exists, the President may, due regard being had to the circumstances of any situation likely to arise or exist during such period, make regulations for the purpose of dealing with that situation and issue orders and instructions for the purpose of the exercise of any powers conferred on him or any other person by any Act referred to in subsection (3) or instrument made under this section or any such Act.”
Read it? Good… note the part where it says “due regard being had to the circumstances likely to arise or exist during such period”… we’ll get back to that shortly.
I don’t Want to Read Those Regulations, Just Give Me a Snapshot!
Well, a snapshot might be difficult, I could try a photo album though.
So, the regulations give the Police much more extensive powers than they usually have. They can (1) enter any property for search and seizure without a warrant (Regulation 15), but that power is limited, to searching for firearms and ammunition (Regulation 9), and searches for documents/publications which are intended to cause a breach of the peace or public order, or incite public disaffection or discontent (Regulations 13 and 14).
What is interesting therefore, is that the regulations do not provide for warrantless search and seizure of (i) drugs, (ii) stolen goods or any other such thing, unless the police say that they are looking for firearms or the prohibited publications. Of course the Police and the Government have been bandying about the impression that it is in all circumstances that Police can search and seize without a warrant. Now you know better.
Secondly, the Police can arrest persons without a warrant (Regulation 16), but you will note that this power is also limited to “acted or is acting or is about to act in a manner prejudicial to public safety or to public order or to have committed or is committing or is about to commit an offence against these Regulations;” (emphasis supplied) It would appear to me therefore that unless you were about to start or partake, or were partaking in a riot, or committing an offence contained in the Regulations, which do not for example include murder, rape, robbery and a host of others… go ahead.. see if you find those offences in the Regulations.
Thirdly, the members of the Defence Force (army, coast guard) have the same powers of a police officer during this period of emergency. (regulation 22, especially sub-regulation (2))
Also, the Minister of National Security can issue detention orders against persons who, in his view, are threats to Public Safety and Order (Regulation 7 and the Second Schedule). In such a case, a Tribunal, set up by the Chief Justice, will examine the situation and determine whether the detention is justified.
I Heard that if I Get Arrested, I Can’t Get Bail!
That position again has been bandied about by the Police and the Government. I disagree. Regulation 19 which deals with the question of Bail states:
“19. (1) Notwithstanding any rule of law to the contrary, but subject to these Regulations, no bail shall be allowed in the case of any person-
(a) in respect of whom a detention order is in force under the provisions of the Second Schedule;
(b) detained under the provisions of regulation 16; or
(c) charged with an offence,if it is shown to the satisfaction of the magistrate that it is reasonably apprehended that the person arrested is likely to engage or to incite persons to
engage in the commission of breaches of the peace or of any other offence against the person or property or against these Regulations,”
Well, as we have seen already, Regulation 16 deals with offences under Regulation 9 (firearm and ammunition) and 13/14 (causing or inciting a danger to public safety or order, public disaffection or discontent. The second schedule deals with detention orders made by the minister in respect of certain individuals and the third category deals with situations where a Magistrate is satisfied that bail should not be granted because the person is a threat to public safety. All that does is give the Magistrate an additional factor to consider when considering bail… Again, therefore, the rhetoric is incorrect. You can get bail in the majority of circumstances.
The right to Bail, however, is reduced
Can the Police Arrest me Without Charge?
If arrested, you can be detained while police carry out their investigations for a period of 24 hours, after which a Magistrate or Police officer of a Rank not lower than Assistant Superintendent can extend that time to a period not exceeding 7 days, but again, that only deals with cases of arrest under regulations 9, 13 and 14. (regulation 16(3))
If I Don’t Live in a “Hotspot” as Defined by the Curfew, can the Police Still Seize and Search Without a Warrant?
Yes. Remember the Proclamation of the President reads “There exists in Trinidad and Tobago a state of Public Emergency”. The Emergency Regulations do not limit their application to any part of Trinidad and Tobago, so Police and Army powers, the restriction of Bail and the like all apply wherever you are.
Is that all?
In essence yes. Just one or 2 more things. Firstly, the President is specifically authorised to make regulations censoring the type of materials and documents you have in your possession (Regulation 3(2)(a)). That regulation also gives him the power to ban communications by various means (BBMs not safe yet)
Further, the Commissioner of Police also has extensive powers to make regulations with regards to the movement of citizens, and prohibiting items they may have in their possession.
So, What Do You Think?
Well, this post is already getting too long… I think that will have to wait until another post… But I’ll be back soon!!
What About Those Emergency Regulations You Keep Harping On?
By Legal Notice 163 of 2011, the President issued Emergency Regulations to cover the period of Public Emergency. They can be found in their entirety courtesy the Government news site.
Yes, But What are They?
Under the constitution, when a period of Public Emergency is declared, the President may make regulations to deal with the situation that has caused the state of public emergency. For those of you who enjoy quotes, here is s.7(1) of the constitution.
“7. (1) Without prejudice to the power of Parliament to make provision in the premise. but subject to this section, where any period of public emergency exists, the President may, due regard being had to the circumstances of any situation likely to arise or exist during such period, make regulations for the purpose of dealing with that situation and issue orders and instructions for the purpose of the exercise of any powers conferred on him or any other person by any Act referred to in subsection (3) or instrument made under this section or any such Act.”
Read it? Good… note the part where it says “due regard being had to the circumstances likely to arise or exist during such period”… we’ll get back to that shortly.
I don’t Want to Read Those Regulations, Just Give Me a Snapshot!
Well, a snapshot might be difficult, I could try a photo album though.
So, the regulations give the Police much more extensive powers than they usually have. They can (1) enter any property for search and seizure without a warrant (Regulation 15), but that power is limited, to searching for firearms and ammunition (Regulation 9), and searches for documents/publications which are intended to cause a breach of the peace or public order, or incite public disaffection or discontent (Regulations 13 and 14).
What is interesting therefore, is that the regulations do not provide for warrantless search and seizure of (i) drugs, (ii) stolen goods or any other such thing, unless the police say that they are looking for firearms or the prohibited publications. Of course the Police and the Government have been bandying about the impression that it is in all circumstances that Police can search and seize without a warrant. Now you know better.
Secondly, the Police can arrest persons without a warrant (Regulation 16), but you will note that this power is also limited to “acted or is acting or is about to act in a manner prejudicial to public safety or to public order or to have committed or is committing or is about to commit an offence against these Regulations;” (emphasis supplied) It would appear to me therefore that unless you were about to start or partake, or were partaking in a riot, or committing an offence contained in the Regulations, which do not for example include murder, rape, robbery and a host of others… go ahead.. see if you find those offences in the Regulations.
Thirdly, the members of the Defence Force (army, coast guard) have the same powers of a police officer during this period of emergency. (regulation 22, especially sub-regulation (2))
Also, the Minister of National Security can issue detention orders against persons who, in his view, are threats to Public Safety and Order (Regulation 7 and the Second Schedule). In such a case, a Tribunal, set up by the Chief Justice, will examine the situation and determine whether the detention is justified.
I Heard that if I Get Arrested, I Can’t Get Bail!
That position again has been bandied about by the Police and the Government. I disagree. Regulation 19 which deals with the question of Bail states:
“19. (1) Notwithstanding any rule of law to the contrary, but subject to these Regulations, no bail shall be allowed in the case of any person-
(a) in respect of whom a detention order is in force under the provisions of the Second Schedule;
(b) detained under the provisions of regulation 16; or
(c) charged with an offence,if it is shown to the satisfaction of the magistrate that it is reasonably apprehended that the person arrested is likely to engage or to incite persons to
engage in the commission of breaches of the peace or of any other offence against the person or property or against these Regulations,”
Well, as we have seen already, Regulation 16 deals with offences under Regulation 9 (firearm and ammunition) and 13/14 (causing or inciting a danger to public safety or order, public disaffection or discontent. The second schedule deals with detention orders made by the minister in respect of certain individuals and the third category deals with situations where a Magistrate is satisfied that bail should not be granted because the person is a threat to public safety. All that does is give the Magistrate an additional factor to consider when considering bail… Again, therefore, the rhetoric is incorrect. You can get bail in the majority of circumstances.
The right to Bail, however, is reduced
Can the Police Arrest me Without Charge?
If arrested, you can be detained while police carry out their investigations for a period of 24 hours, after which a Magistrate or Police officer of a Rank not lower than Assistant Superintendent can extend that time to a period not exceeding 7 days, but again, that only deals with cases of arrest under regulations 9, 13 and 14. (regulation 16(3))
If I Don’t Live in a “Hotspot” as Defined by the Curfew, can the Police Still Seize and Search Without a Warrant?
Yes. Remember the Proclamation of the President reads “There exists in Trinidad and Tobago a state of Public Emergency”. The Emergency Regulations do not limit their application to any part of Trinidad and Tobago, so Police and Army powers, the restriction of Bail and the like all apply wherever you are.
Is that all?
In essence yes. Just one or 2 more things. Firstly, the President is specifically authorised to make regulations censoring the type of materials and documents you have in your possession (Regulation 3(2)(a)). That regulation also gives him the power to ban communications by various means (BBMs not safe yet)
Further, the Commissioner of Police also has extensive powers to make regulations with regards to the movement of citizens, and prohibiting items they may have in their possession.
So, What Do You Think?
Well, this post is already getting too long… I think that will have to wait until another post… But I’ll be back soon!!
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