In an unprecedented move, the President of T&T has signed into force the Emergency Powers (Curfew) Order, 2011, on August 21.The press release on the Government's Web site describes the situation as follows:"President George Maxwell Richards has issued the proclamation and the accompanying Emergency Powers Regulations, 2011- regulations and order-giving effect to the limited state of emergency as announced by Prime Minister Kamla Persad-Bissessar on Sunday evening."The following is the Gazette notice of the proclamation issued by the President:
"Whereas it is enacted by:
"(a) section 8(1) of the Constitution that the President may, from time to time, make a proclamation that a state of public emergency exists; and
"(b) section 8(2) of the Constitution that a proclamation made by the President shall not be effective unless it contains a declaration that the President is satis- fied that action has been taken or is immediately threatened by any person, of such a nature and on so extensive a scale as to be likely to endanger the public safety.
"Now, therefore, I, George Max-well Richards, President as aforesaid, in pursuance of the powers conferred upon me by section 8(1) of the Constitution, hereby declare that:
"(a) I am satisfied that action has been taken or is immediately threatened by persons or bodies of persons of such a nature and on so extensive a scale as to be likely to endanger the public safety; and
"(b) a state of public emergency exists in the Republic of Trinidad and Tobago.
"Given under my hand and the Seal of the President of the Republic of Trinidad and Tobago, at the Office of the President, St Ann's, this 21st day of August, 2011."
Despite the seemingly good intentions behind the order, I am writing as a concerned Trinidadian to suggest that the order is illegal and unconstitutional.If the order were to stand it would set an impermissible pre-cedent for the executive branch of the Government to unduly interfere with the parliamentary branch. "Anything" can be declared a public emergency.Part III of the Constitution of T&T, obtained from the Attorney General's Web site itself (an AG, who, not too long ago would have vigorously challenged any constitutional transgressions by the Government), sets out the "Exceptions for Emergencies."In Section 8 of Part III, the Constitution says:
"1. Subject to this section, for the purposes of this chapter, the President may from time to time make a proclamation declaring that a state of public emergency exists;
"2. A proclamation made by the President under subsection (1) shall not be effective unless it contains a declaration that the President is satisfied-
"a. that a public emergency has arisen as a result of the imminence of a state of war between Trinidad and Tobago and a foreign State;
"b. that a public emergency has arisen as a result of the occurrence of any earthquake, hurricane, flood, fire, outbreak of pestilence or of infectious disease, or other calamity whether similar to the foregoing or not; or
"c. that action has been taken, or is immediately threatened, by any person, of such a nature and on so extensive a scale, as to be likely to endanger the public safety or to deprive the community or any substantial portion of the community of supplies or services essential to life."
The President has declared a public emergency on this basis of the grounds enumerated in sub-section 8 (2) (c). However, the plain wording of the sub-section-and the facts that surround the alleged "public emergency"-suggest that there is no constitutional basis for the President to act, in this situation.The actions must be of such an extensive scale as to endanger public safety. Crime may be prev-alent, it may even be high, but does it meet the "extensive scale" required by the Constitution?Remember, these are exceptional powers, and are to be used only in exceptional situations.Furthermore, if there are legitimate grounds for declaring a public emergency on the basis of "ac- tion [that] has been taken or is immediately threatened by any person, of such a nature and on so ex- tensive a scale as to be likely to endanger the public safety", then -by definition-it cannot be a "lim- ited" state of emergency. It either is, or it isn't, a state of emergency. Yet, every press release from the Government, including the one quoted above, describes the action as being "limited."As Anand Ramlogan (in his pre-AG days) said: "The idea that the President is above the law, and hence his actions should not be challenged, is dangerous and wrong...
"The modern developments in the field of administrative and constitutional law do not support the concept of one man being above the law. The President will be immunised from legal action when he is acting in good faith, acts in accordance with the rule of law, promotes the purpose for which it was given, and has due regard for the fundamental human rights of all citizens."More is expected from the head of state."Indeed, the order impermissibly and unconstitutionally treads upon the rights enshrined in Section 4 of the Constitution itself. In particular:
"(a) the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived there-of except by due process of law;
"(b) the right of the individual to equality before the law and the protection of the law;
"(c) the right of the individual to respect for his private and family life;
"(d) the right of the individual to equality of treatment from any public authority in the exercise of any functions;
"(g) freedom of movement;
"(j) freedom of association and assembly."
Akin to the earlier defeat of the death penalty provisions in the Constitutional (Amendment) (Capital Offences) Bill, 2011, the current order is yet another example of the Government's rash and emotive attempt to solve problems in an unconstitutional manner. Effective planning and co-or- dination of policing efforts (by policing executives who are actually present in the country) is the solution. Martial law is not.
Emir Aly Crowne, a barrister andsolicitor, is an Associate Professor of Law at the University of Windsor, andis therefore not affected by the curfew