DA­REECE PO­LO

Se­nior Re­porter

da­reece.po­lo@guardian.co.tt

In­de­pen­dent sen­a­tors are sharply di­vid­ed over the Gov­ern­ment’s de­ci­sion to im­pose a sec­ond State of Emer­gency (SoE) just 10 months in­to of­fice, deep­en­ing de­bate over crime pol­i­cy and con­sti­tu­tion­al lim­its.

The lat­est procla­ma­tion fol­lows the Gov­ern­ment’s failed at­tempt to pass its pro­posed Zones of Spe­cial Op­er­a­tions (ZOSO) leg­is­la­tion in the Sen­ate. On Jan­u­ary 27, the ad­min­is­tra­tion was un­able to se­cure the re­quired three-fifths ma­jor­i­ty, af­ter nei­ther Op­po­si­tion nor in­de­pen­dent sen­a­tors sup­port­ed the bill.

Speak­ing out­side Par­lia­ment yes­ter­day, In­de­pen­dent Sen­a­tor An­tho­ny Vieira crit­i­cised the re­newed SoE, say­ing he re­mains un­con­vinced that emer­gency pow­ers ad­dress the struc­tur­al dri­vers of crime.

While ques­tion­ing the ne­ces­si­ty of sweep­ing mea­sures, Vieira main­tained that he vot­ed against ZOSO be­cause Gov­ern­ment de­clined to ac­cept amend­ments pro­posed dur­ing de­bate in the Up­per House.

He nev­er­the­less de­scribed the SoE as the less­er of the two op­tions.

“I re­al­ly am not per­suad­ed that there’s a need for an SoE. I thought that there had been a de­crease in crime? And I thought on the last oc­ca­sion the Prime Min­is­ter, when she was in op­po­si­tion, had de­cried hav­ing SoEs in place of a prop­er crime plan—so, that’s num­ber one. And the sec­ond point I’ll make is that hav­ing said that, I pre­fer the SoE than of hav­ing had the ZOSO bill as it had been pre­sent­ed. I think we’re prob­a­bly bet­ter off with an SoE.”

In con­trast, In­de­pen­dent Sen­a­tor Court­ney Mc Nish, the lone in­de­pen­dent to ab­stain from vot­ing on the ZOSO while eight oth­ers re­ject­ed it, said his de­ci­sion was guid­ed by con­science.

Mc Nish en­dorsed the SoE, ar­gu­ing that it may be the on­ly im­me­di­ate tool avail­able to con­front ris­ing vi­o­lent crime, in­clud­ing mur­ders.

He al­so dis­missed con­cerns about reg­u­la­tions in­tro­duced un­der the SoE that pro­hib­it state­ments, oral or oth­er­wise, deemed ca­pa­ble of in­flu­enc­ing pub­lic opin­ion in a man­ner prej­u­di­cial to pub­lic safe­ty. The pro­vi­sions ex­tend to posts, videos and mes­sages shared on­line.

“I think what this pro­vi­sion is try­ing to do is make it very abun­dant­ly clear that the Gov­ern­ment will not be tol­er­at­ing re­marks and com­ments that is sub­ver­sive in na­ture. They can do that. There is no right that is ab­solute.

“Your free­dom of speech is not ab­solute. You just can’t come out there in the pub­lic and say what­ev­er you want, how­ev­er you want, against any­body. There is the law of tort, there’s defama­tion. You can’t do it. So, is it en­croach­ing (free­dom of ex­pres­sion)? Maybe, but it is a State of Emer­gency,” Mc Nish said.

Mean­while, In­de­pen­dent Sen­a­tor Michael Vic­tor De La Bastide said he had no im­me­di­ate rea­son to doubt the Gov­ern­ment’s jus­ti­fi­ca­tion for de­clar­ing an­oth­er SoE. How­ev­er, he cau­tioned that the man­ner in which it was im­ple­ment­ed could in­vite con­sti­tu­tion­al scruti­ny.

“The Gov­ern­ment has to be care­ful that there may be a con­sti­tu­tion­al chal­lenge to this State of Emer­gency, on the ba­sis that it may be said that what the Gov­ern­ment tried to do—and I’m not say­ing that they did this—but it may be chal­lenged on the grounds that they sim­ply avoid­ed the pro­ce­dure of seek­ing to ex­tend that State of Emer­gency by go­ing to par­lia­ment; by ter­mi­nat­ing it and then de­clar­ing an­oth­er one soon there­after.”

De La Bastide point­ed to a May 16 rul­ing last year by Ja­maica’s Con­sti­tu­tion­al Court, which found that mul­ti­ple states of emer­gency de­clared on 15 sep­a­rate oc­ca­sions were not made for a con­sti­tu­tion­al­ly valid pur­pose and were not demon­stra­bly jus­ti­fied in a free and de­mo­c­ra­t­ic so­ci­ety.

In that case, the court ruled in favour of op­po­si­tion Peo­ple’s Na­tion­al Par­ty gen­er­al sec­re­tary Dr Day­ton Camp­bell. The judges de­ter­mined that three so-called “rolling procla­ma­tions” in late 2022 breached the sep­a­ra­tion of pow­ers by ef­fec­tive­ly by­pass­ing Par­lia­ment’s con­sti­tu­tion­al role in ex­tend­ing emer­gency pow­ers be­yond 14 days.

The Ja­maican court found that the gov­ern­ment had al­lowed SoEs to ex­pire af­ter the Gov­er­nor Gen­er­al’s 14-day lim­it rather than seek­ing par­lia­men­tary ap­proval for ex­ten­sion, on­ly to im­me­di­ate­ly de­clare new ones. The rul­ing de­scribed the ap­proach as an at­tempt to cir­cum­vent de­bate and leg­isla­tive over­sight.

In­de­pen­dent Sen­a­tor Dr De­siree Mur­ray de­clined to com­ment.