Nicholas Laughlin's blog etc.

The right to question

“[Attorney general Anand] Ramlogan said citizens’ rights are not suspended during a State of Emergency, but rather the police’s powers are bolstered.

“‘It is not that your Constitutional rights are suspended,’ he said.”

— “Cops can arrest without charge”, by Andre Bagoo;
Trinidad and Tobago Newsday, 23 August, 2011

“Ramlogan said the public’s constitutional rights have not been suspended in the situation.”

— “The war is on ...”, by Gail Alexander;
Trinidad and Tobago Guardian, 23 August, 2011

Trinidad and Tobago is in a state of emergency, a constitutionally defined legal situation in which basic civil rights may be temporarily curtailed or suspended in the interest of public order and safety. The government says this “very decisive action” is necessary to deal with violent crime and gang activity, which have proliferated alarmingly over the past decade.

This is a strategy some prominent citizens have recommended in the past, and many now agree that drastic action is justified, with two recent murder sprees adduced as evidence that gang-related killings are out of control. The government says the police need additional powers of search, arrest, and detention, and the state of emergency also makes it possible for the Defence Force to exercise police powers. It has also made it possible to declare a nighttime curfew in “hotspot” areas, which include Port of Spain, its closest suburbs, San Fernando, Arima, and Chaguanas.

Ordinary Trinidadians have been most immediately affected by the curfew, which disrupts our daily activities and economic productivity. And the authorities maintain that, the curfew aside (a major aside), “law-abiding” citizens will not be affected by the state of emergency. But this is a deliberate obfuscation of the scope of the Emergency Powers Regulations now in force, which suspend or curtail habeas corpus and our rights to free movement, expression, assembly, association, and privacy — for all citizens, not only “criminal elements”.

“Ramlogan said in the last nine years the country was in an ‘undeclared state of emergency’ and people have used self-imposed curfews to stay safe.”

— “AG vows to make country safe again”, by Renuka Singh;
Trinidad Express, 22 August, 2011

I have no legal training whatsoever, but I understand this: democracy requires negotiating a balance between individual rights and needs and a community’s common good. Every society grapples with this negotiation in its own way, according to its circumstances, and the process is continuous (because history is restless). This balance is expressed in written laws and unwritten conventions, in which every citizen has a vital interest. In a healthy democracy, citizens recognise and assert this interest, and any change in that balance between individual rights and the common good should be accompanied by vigorous and informed debate. A healthy democracy requires dissent.

It also requires that citizens ask questions. So here are some of mine.

Why is the attorney general — a very smart man and clearly also a smartman, as all lawyers perhaps must be — actively misleading the public about the extent to which the “fundamental rights and freedoms” recognised in section 4 of the constitution have been derogated by the Emergency Powers Regulations? It is simply not true that “the public’s constitutional rights have not been suspended”. Temporarily suspending or limiting constitutional rights — shifting the balance between citizens and authorities — is the whole point of the regulations.

Why did the government declare the state of emergency in the absence of the commissioner of police and his deputy, considering that the Emergency Regulations give the commissioner significant and augmented powers of discretion over citizens’ rights? Whether or not you agree that a foreign citizen should have been appointed commissioner, whether you think he has done a good or bad job, it ought to concern us that the government did not request the commissioner’s immediate return under these extraordinary circumstances.

Why — if the objective of the state of the emergency is to give the police temporary special powers to round up illegal arms and disrupt gang activity — were the Emergency Powers Regulations not drafted more narrowly so as to impinge on as few basic rights as possible? What does a ban on public meetings “held for the purpose of the transaction of matters of public interest or for the discussion of such matters” have to do with rooting out crime? Or a ban on “any document ... likely ... to cause disaffection or discontent among persons”? Many works of literature make me feel disaffected or discontented. Are novels to be confiscated? The regulations are drafted with sufficient breadth that the authorities may forbid almost all forms of expression. Do circumstances really justify such broad powers?

The authorities assure us that the police and Defence Force will operate within strict guidelines and with respect for citizens, and that the state of emergency will last no longer than absolutely necessary. Maybe — I hope — these assurances are reliable. They also say these extreme steps are in the interest of public safety. But I feel dreadfully and profoundly unsafe knowing that so many of my basic civil rights have been derogated, with no certainty about when they will be restored.

These rights only exist because of a hard-won consensus on human nature and our moral obligations to each other that has taken centuries to thrash out — in philosophical treatises, political tracts, and theological texts, in legislation and judicial rulings from many jurisdictions, in confrontations between citizens and their rulers, and in the everyday actions of ordinary people. They can continue to exist only if citizens are vigilant, informed, and unafraid to exercise their duty to ask questions and express dissent to the governments they elect to serve them.