Prof Hamid Ghany

Our lat­est state of emer­gency (SoE) came to an end last Thurs­day. Just like the first one in our his­to­ry that came to an end on March 23, 1965, there were de­tainees who were freed and not charged with any of­fence.

One such 1965 de­tainee was the renowned pub­lic in­tel­lec­tu­al CLR James, who had been placed un­der house ar­rest and was not charged with any of­fence when the SoE was lift­ed. He was de­tained up­on his ar­rival in T&T to cov­er a crick­et Test match be­tween the West In­dies and Aus­tralia.

The Dr Er­ic Williams gov­ern­ment in­struct­ed that the March 9th, 1965 SoE be amend­ed on March 12th to in­clude the St Ann’s Ward, where James would be stay­ing, so he could be put un­der house ar­rest.

When James was re­leased with­out charge, George Har­vey, in a front-page re­port in the Trinidad Guardian for Wednes­day, March 24th, 1965, wrote:

“Mr James, a for­mer Ed­i­tor of the rul­ing Peo­ple’s Na­tion­al Move­ment or­gan, ‘The Na­tion’, calm­ly re­ceived the news yes­ter­day that the emer­gency had end­ed and checked with the po­lice to en­sure that re­straints on his per­son had been re­moved. He still ex­pressed amaze­ment at the treat­ment met­ed out to him. The 64-year old writer said: ‘I re­main com­plete­ly mys­ti­fied as to the rea­son why I had been treat­ed this way.’”

Many peo­ple have sud­den­ly had an awak­en­ing in mak­ing a con­nec­tion be­tween Pre­ven­tive De­ten­tion Or­ders (PDOs) and the right of a Min­is­ter of Gov­ern­ment to is­sue de­ten­tion or­ders against in­di­vid­u­als dur­ing an SoE.

Many peo­ple in this so­ci­ety con­cur­rent­ly de­sire the West­min­ster-White­hall mod­el be re­tained as our pre­ferred form of gov­ern­ment, yet they do not un­der­stand the sim­ple re­al­i­ty that one of the core di­men­sions of the West­min­ster-White­hall mod­el is in­di­vid­ual min­is­te­r­i­al re­spon­si­bil­i­ty.

On­ly dur­ing an SoE, the Ex­ec­u­tive is giv­en en­hanced pow­ers to man­age the af­fairs of the State to ad­dress pub­lic safe­ty and se­cu­ri­ty in a man­ner that would not oth­er­wise be the case.

In the cir­cum­stances, min­is­te­r­i­al re­spon­si­bil­i­ty for PDOs has been at the heart of the con­sti­tu­tion­al process since in­de­pen­dence and was re­tained when we be­came a re­pub­lic.

It is amaz­ing that the ap­pli­ca­tion of these time-worn prin­ci­ples is on­ly now be­ing queried sim­ply be­cause peo­ple of priv­i­lege were made sub­ject to the same laws that so many oth­er cit­i­zens have had to en­dure since in­de­pen­dence (with some amend­ments in 1976).

Dur­ing any SoE, the Ex­ec­u­tive is re­quired to ap­proach the House of Rep­re­sen­ta­tives to seek an ex­ten­sion, af­ter a pe­ri­od of fif­teen days, by sim­ple ma­jor­i­ty. This was re­duced from thir­ty days be­fore we be­came a re­pub­lic. This en­sures that the Ex­ec­u­tive must seek the per­mis­sion of Par­lia­ment to ex­tend the pe­ri­od of the SoE, there­by ob­serv­ing the sep­a­ra­tion of pow­ers.

There is no oblig­a­tion to charge any­one who is held on a PDO. Yet there is a false nar­ra­tive be­ing per­pe­trat­ed in lega­cy me­dia re­ports and so­cial me­dia posts that there is such an oblig­a­tion.

CLR James was the liv­ing proof that the State could de­tain him be­cause he was re­gard­ed as a threat to so­ci­ety by the PNM gov­ern­ment. In 1995, then Speak­er Oc­c­ah Sea­paul was de­tained un­der house ar­rest and nev­er charged with any of­fence.

Dur­ing any SoE, the Ex­ec­u­tive is giv­en pow­ers of

(i) de­ten­tion,

(ii) cur­few, and

(iii) cur­tail­ment of move­ment.

The Ex­ec­u­tive is not giv­en any ju­di­cial pow­ers to charge any­one, as that re­mains a ju­di­cial func­tion. That is why pro­vi­sion is made for the de­ten­tion of any­one un­der SoE reg­u­la­tions to be re­viewed by a Tri­bunal spe­cial­ly ap­point­ed to re­view such de­ten­tions. Such a Tri­bunal does not ex­ist out­side of any SoE; how­ev­er, false me­dia nar­ra­tives are try­ing to make a leap from such Tri­bunals to the court room.

When the SoE ends, the pow­er of the min­is­ter to is­sue PDOs ends, the Tri­bunal ends, and every­one has to be re­leased. Some peo­ple may be charged as a re­sult of the ju­di­cial process, but not every­one will be charged like CLR James and Oc­c­ah Sea­paul.

In propos­ing amend­ments to our con­sti­tu­tion in their 1974 Re­port, the Wood­ing Con­sti­tu­tion Com­mis­sion rec­om­mend­ed as fol­lows:

“117. We think that there should be changes in the Re­view Tri­bunal. Un­der the present Con­sti­tu­tion, the Tri­bunal is em­pow­ered on­ly to make rec­om­men­da­tions which the Gov­ern­ment is free to ac­cept or re­ject. We rec­om­mend that the Tri­bunal’s rec­om­men­da­tions should be ac­cept­ed as bind­ing since de­tainees have been con­vict­ed of no of­fence and their de­ten­tion should ap­pear to be well-found­ed to war­rant its con­tin­u­ance…”

The PNM gov­ern­ment of Dr Er­ic Williams re­ject­ed that rec­om­men­da­tion for the 1976 Re­pub­li­can Con­sti­tu­tion. They re­tained the sta­tus of the Re­view Tri­bunal as ad­vi­so­ry on­ly and not di­rec­to­ry.

Pro­fes­sor Hamid Ghany is Pro­fes­sor of Con­sti­tu­tion­al Af­fairs and Par­lia­men­tary Stud­ies at The Uni­ver­si­ty of the West In­dies (UWI). He was al­so ap­point­ed an Hon­orary Pro­fes­sor of The UWI up­on his re­tire­ment in Oc­to­ber 2021. He con­tin­ues his re­search and pub­li­ca­tions and al­so does some teach­ing at The UWI. He was se­lect­ed by the THA to guide the dis­cus­sions on To­ba­go au­ton­o­my.