How do we rec­on­cile pub­lic safe­ty with in­di­vid­ual lib­er­ty while main­tain­ing con­fi­dence in elect­ed of­fi­cials and the jus­tice sys­tem? The per­il of dra­con­ian law lies not mere­ly in its sever­i­ty, but in its sus­cep­ti­bil­i­ty to abuse. While in­tend­ed to pun­ish crim­i­nals and pro­tect the pub­lic, it can just as read­i­ly be­come a weapon against the in­no­cent if there are im­prop­er mo­tives and dis­re­gard for the rule of law. His­to­ry is re­plete with the ten­ta­cles of po­lit­i­cal pow­er claw­ing at lib­er­ty, de­stroy­ing pil­lars of democ­ra­cy, op­po­nents, and per­sons crit­i­cal of the pow­er­ful.

You hear the whis­pers, ex­pres­sions of fear and grow­ing con­cern about the con­tin­ued State of Emer­gency (SoE) and the use of Pre­ven­tive De­ten­tion Or­ders (PDOs), with hun­dreds of per­sons de­tained for months with­out charge, bail, or hear­ings, un­der in­hu­mane con­di­tions. The SoE was de­clared by the last gov­ern­ment in De­cem­ber 2024 and, sub­se­quent­ly, un­der this Gov­ern­ment and con­tin­ues un­til at least Sep­tem­ber. Mr Roger Alexan­der dis­re­gards trans­paren­cy and of­fers a flip­pant jus­ti­fi­ca­tion for PDOs—claim­ing they pre­vent crime—ig­nor­ing the broad­er is­sue: PDOs are not a sub­sti­tute for due process and ef­fec­tive polic­ing. While po­lice re­port ques­tion­able sta­tis­tics on re­duc­tions in vi­o­lent crime, on­ly time will con­firm if gains per­sist af­ter the SoE ends. The crime surge af­ter the 2011 SoE end­ed sug­gests that vi­able strate­gies in law en­force­ment, with well-tar­get­ed so­cial pro­grammes, are crit­i­cal to re­duc­ing crime.

Years of chron­ic crime and wan­ing pub­lic trust have left the po­lice frus­trat­ed. Rather than build­ing strong cas­es, the Min­is­ter—a po­lit­i­cal ac­tor—or­ders mass de­ten­tions. He and the po­lice claim to “know” crim­i­nals, which is a siren call that they don’t have suf­fi­cient ev­i­dence to lay charges and suc­cess­ful­ly pros­e­cute. Peo­ple are treat­ed as guilty un­til they can prove their in­no­cence.

Apart from PDOs, an un­set­tling pat­tern of events calls for vig­i­lance: Cit­i­zens ex­er­cis­ing their right to protest face ag­gres­sion. A steel­band/po­lice clash hap­pened when, al­leged­ly, plain­clothes of­fi­cers who didn’t im­me­di­ate­ly iden­ti­fy them­selves as po­lice of­fi­cers con­front­ed Sil­ver Stars Steel­band play­ers dur­ing Tribe’s band launch. In the melee, an of­fi­cer al­leged­ly slapped a woman, and a play­er was wound­ed and hos­pi­talised. The woman and pan play­ers were de­tained and charged for al­leged of­fences.

In Par­lia­ment, de­bates were shut down, ac­count­abil­i­ty sti­fled, and In­de­pen­dent Sen­a­tors faced base­less crim­i­nal ac­cu­sa­tions. The Gov­ern­ment vil­i­fied In­de­pen­dent Sen­a­tors for not sup­port­ing the dra­con­ian ZOSO law, which would have locked down en­tire com­mu­ni­ties for days and de­tained peo­ple with­out war­rants and bail, a pro­ce­dure sim­i­lar to a PDO. Min­is­ter Alexan­der, the same min­is­ter is­su­ing or­ders to take away peo­ple’s lib­er­ty, ad­vo­cat­ed for US visa re­vo­ca­tions based on so­cial me­dia ac­tiv­i­ty. He dis­played dis­dain for free speech af­ter a pub­lic video showed the con­tro­ver­sial killing of Joshua Sama­roo. He wants “a le­gal ap­proach” against such be­hav­iour. He dis­agreed with strength­en­ing the Po­lice Com­plaints Au­thor­i­ty.

The Telecom­mu­ni­ca­tions Au­thor­i­ty is­sued a veiled threat of reg­u­la­to­ry ac­tion against CNC3. Why? For broad­cast­ing con­tro­ver­sial lan­guage-Jamette! Par­lia­ment em­ploy­ees have been ac­cused of bias and brand­ed PNM agents.

In Par­lia­ment, the Gov­ern­ment dra­mat­i­cal­ly la­belled the Syr­i­an com­mu­ni­ty as gang­sters and PNM—Peo­ple’s Na­tion­al Move­ment—fi­nanciers, say­ing that if they be­haved as gang­sters do, they would be treat­ed as “blue-col­lar gang mem­bers” and that Teteron (place of in­car­cer­a­tion) awaits. Soon af­ter, the Min­is­ter is­sued PDOs against Mr and Mrs Do­minic Hadeed for al­leged con­spir­a­cy to as­sas­si­nate pub­lic of­fi­cials. Mr Hadeed had pre­vi­ous­ly crit­i­cised the Gov­ern­ment. The Hadeeds’ case for in­ter­im re­lief, af­ter fail­ure at the low­er court, went to the Court of Ap­peal, which didn’t find suf­fi­cient grounds to war­rant the Hadeeds’ de­ten­tion, and ruled to re­lease them from prison to home ar­rest.

Mr Is­rael Khan SC, Pres­i­dent of the Crim­i­nal Bar As­so­ci­a­tion, con­clud­ed that the Court of Ap­peal “es­teemed judges were patent­ly wrong in grant­i­ng them in­ter­im non-cus­to­di­al re­lief …” Khan ar­gued that Par­lia­ment in­tend­ed PDOs to be dra­con­ian, with no right to bail or habeas cor­pus, and that the Min­is­ter has sole dis­cre­tion, un­con­strained by re­quire­ments to jus­ti­fy de­ci­sions ob­jec­tive­ly. He placed much weight on Par­lia­ment’s in­ten­tion, and the Min­is­ter’s dis­cre­tion, not on the prin­ci­ple that the courts pro­vide ju­di­cial over­sight, es­pe­cial­ly where a per­son’s lib­er­ty is at stake. The Min­is­ter must ex­er­cise statu­to­ry pow­ers with­in the frame­work of the Con­sti­tu­tion and the rule of law. It is the ju­di­cia­ry’s re­spon­si­bil­i­ty to de­ter­mine whether the Min­is­ter’s pow­ers have been ex­er­cised law­ful­ly. The first Court of Ap­peal, in grant­i­ng in­ter­im re­lief, did not re­ject Par­lia­ment’s in­tent. It pre­served the ju­di­cia­ry’s con­sti­tu­tion­al role in en­sur­ing that the Ex­ec­u­tive—Gov­ern­ment Min­is­ter—de­ten­tion of cit­i­zens is sub­ject to mean­ing­ful le­gal chal­lenge.

Privy Coun­cil de­rides Court of Ap­peal

Soon af­ter the first Court of Ap­peal rul­ing for the Hadeeds to be re­leased un­der house de­ten­tion, a sec­ond Court of Ap­peal re­versed that rul­ing, keep­ing the Hadeeds in­car­cer­at­ed, pend­ing an ap­peal to the Privy Coun­cil on ur­gency. The Hadeeds’ le­gal team went to the SoE Tri­bunal, which rec­om­mend­ed the Hadeeds’ re­lease, stat­ing that the de­ten­tion was “not nec­es­sary or ex­pe­di­ent in the pub­lic’s in­ter­est.” The State then chal­lenged the State’s Tri­bunal.

The Privy Coun­cil blast­ed and de­rid­ed the Gov­ern­ment’s team; “Your lack of un­der­stand­ing does not con­sti­tute an emer­gency on our part,” the Coun­cil said. Then, the Min­is­ter of Home­land Se­cu­ri­ty re­voked the PDOs against the Hadeeds. Whether he’s tak­ing in­struc­tions is be­side the point. One ex­pects a Min­is­ter of Home­land Se­cu­ri­ty to have strate­gic vi­sion, to safe­guard con­sti­tu­tion­al rights while pro­tect­ing pub­lic safe­ty, to have in­tel­lec­tu­al abil­i­ty to eval­u­ate the ve­rac­i­ty of in­for­ma­tion from the po­lice and in­tel­li­gence agen­cies, among oth­er crit­i­cal val­ues. The re­vo­ca­tion may not be the end of the Hadeeds’ mat­ter; nev­er­the­less, it pos­es the ques­tion: Is the re­mand and pre­ven­tive de­ten­tion sys­tem eq­ui­table? The fact is, nei­ther pover­ty nor wealth should de­ter­mine whether some­one is de­prived of lib­er­ty, and the le­git­i­mate ques­tion now is whether the statu­to­ry and con­sti­tu­tion­al cri­te­ria for de­ten­tion have been met in the cas­es of the hun­dreds of de­tainees un­der PDOs with­out hear­ings. Events sug­gest not. Every PDO de­tainee should now have im­me­di­ate ac­cess to le­gal aid where it is not af­ford­able to the in­di­vid­ual.

We now await the Privy Coun­cil’s de­ter­mi­na­tion on out­stand­ing 2011 SoE de­ten­tion mat­ters, which hope­ful­ly will es­tab­lish the ev­i­den­tiary thresh­old for the use of PDOs.