An­na-Lisa Paul

Se­nior Re­porter

an­na-lisa.paul@guardian.co.tt

High Court Judge Frank Seep­er­sad has stayed pro­ceed­ings in a con­sti­tu­tion­al chal­lenge brought by a south busi­ness­man, who is su­ing the State over the pow­ers grant­ed to po­lice of­fi­cers dur­ing the on­go­ing State of Emer­gency (SoE).

The de­ci­sion, de­liv­ered dur­ing a vir­tu­al hear­ing yes­ter­day, paus­es the case pend­ing the out­come of a sim­i­lar mat­ter now be­fore the Privy Coun­cil.

Judge Seep­er­sad said his hands were tied by an ex­ist­ing Court of Ap­peal rul­ing which up­held the con­sti­tu­tion­al­i­ty of a sim­i­lar reg­u­la­tion. This was de­spite his own view that it was “in­con­sis­tent and un­nec­es­sary” for po­lice of­fi­cers to share with mag­is­trates the pow­er to ex­tend de­ten­tion be­yond 48 hours.

The chal­lenge was filed by Mozam Edoo, who ar­gues that the reg­u­la­tion breach­es the Con­sti­tu­tion and is seek­ing four de­c­la­ra­tions from the court.

Seep­er­sad said, “In as much as the reg­u­la­tion recog­nis­es that a mag­is­trate can al­so make an or­der of longer de­ten­tion, I find it in­her­ent­ly in­con­sis­tent and whol­ly un­nec­es­sary that that pow­er was al­so ex­tend­ed to the po­lice, es­pe­cial­ly in a so­ci­ety where the pub­lic does not re­pose much trust and con­fi­dence in the po­lice.”

He not­ed that the Court of Ap­peal had pre­vi­ous­ly up­held Reg­u­la­tion 16 of the 2011 Emer­gency Pow­ers Reg­u­la­tions, which mir­rors Reg­u­la­tion 13(3) of 2025—ex­cept for the ex­ten­sion from 24 to 48 hours.

“The Court of Ap­peal has al­ready ex­pressed a view on the con­sti­tu­tion­al­i­ty of an equiv­a­lent pro­vi­sion,” he said, adding that the ap­pel­late court found the mea­sure to be “rea­son­ably jus­ti­fi­able” and not in breach of Sec­tions 4 and 5 of the Con­sti­tu­tion.

Re­fer­ring to the Elie and oth­ers case now be­fore the Privy Coun­cil, Seep­er­sad ruled that it would be pre­ma­ture for the High Court to make any de­c­la­ra­tion—even an in­ter­im one—on the con­sti­tu­tion­al­i­ty of the 2025 reg­u­la­tion. He there­fore or­dered that Edoo’s claim be stayed pend­ing the out­come of that ap­peal.

Edoo’s at­tor­neys, Sunil Gopaul-Go­sine and Vis­han Michael Gopaul-Go­sine, have ar­gued that Reg­u­la­tion 13(3) vi­o­lates the sep­a­ra­tion of pow­ers by al­low­ing po­lice, as mem­bers of the ex­ec­u­tive, to per­form a ju­di­cial func­tion.

Their claim seeks to re­move that au­thor­i­ty from po­lice of­fi­cers, leav­ing it sole­ly with mag­is­trates.
Reg­u­la­tion 13(3) states that no per­son may be de­tained be­yond 48 hours “ex­cept with the au­thor­i­ty of a mag­is­trate or of a po­lice of­fi­cer not be­low the rank of As­sis­tant Su­per­in­ten­dent,” who may ex­tend de­ten­tion for up to sev­en days if nec­es­sary for com­plet­ing in­quiries.

The con­sti­tu­tion­al sec­tions cit­ed in the claim in­clude Sec­tion 4(b), which guar­an­tees the right to equal­i­ty be­fore the law and pro­tec­tion of the law, and pro­vi­sions un­der Chap­ter 5, which pro­tect the right to be brought prompt­ly be­fore a ju­di­cial of­fi­cer and to a fair hear­ing.

Jus­tice Seep­er­sad al­so chas­tised the State for its ear­li­er non-ap­pear­ance in the mat­ter, which caused a de­lay. He warned that the court would not tol­er­ate ad­min­is­tra­tive in­ef­fi­cien­cies with­in the So­lic­i­tor Gen­er­al’s De­part­ment.

“Every pos­si­ble op­por­tu­ni­ty has been af­ford­ed to the de­fen­dant to come be­fore the court,” Seep­er­sad said, de­scrib­ing the State’s pri­or ab­sence as “alarm­ing” giv­en the na­ture of the con­sti­tu­tion­al claim.