Derek Achong

Se­nior Re­porter

derek.achong@guardian.co.tt

The Gov­ern­ment is mak­ing good on its pledge to make amend­ments to reg­u­la­tions for the on­go­ing State of Emer­gency (SoE) re­lat­ed to pub­lic or­der.

Short­ly af­ter the SoE was pro­claimed and the as­so­ci­at­ed reg­u­la­tions pub­lished late last year, lawyers rep­re­sent­ing Vishal Per­sad, who is the ad­min­is­tra­tor of the blog “Mil­len­ni­als for Change”, filed a law­suit al­leg­ing that as­pects of the reg­u­la­tions deal­ing with pub­lic or­der were un­con­sti­tu­tion­al.

When the case came up for hear­ing be­fore High Court Judge West­min James last month, lawyers for the Of­fice of the At­tor­ney Gen­er­al in­di­cat­ed that the Gov­ern­ment has agreed to amend the reg­u­la­tions to re­move the pub­lic or­der pro­vi­sions.

Asked for an up­date on the pro­posed changes dur­ing a post-Cab­i­net press brief­ing yes­ter­day af­ter­noon, Prime Min­is­ter Stu­art Young con­firmed that the change was im­mi­nent.

Young said, “To­day, the Cab­i­net con­firmed and ap­proved that, and the reg­u­la­tions would be sent out over the next 24 hours.”

In the law­suit, Per­sad lawyers Kiel Tak­lals­ingh and Keron Ramkhal­whan specif­i­cal­ly chal­lenged Reg­u­la­tions 12 and 14 and an as­so­ci­at­ed sched­ule which deals with pub­lic or­der.

The reg­u­la­tions pro­hib­it per­sons from in­flu­enc­ing pub­lic opin­ion in a man­ner like­ly to be prej­u­di­cial to pub­lic safe­ty and or­der and em­pow­er the po­lice to ar­rest, de­tain, and charge al­leged of­fend­ers.

If even­tu­al­ly con­vict­ed, of­fend­ers face a max­i­mum penal­ty of a $100,000 fine and five years im­pris­on­ment.

“It would be wrong for the Ex­ec­u­tive to re­gard the Reg­u­la­tions as giv­ing it unchecked abil­i­ty to tar­get and de­tain in­di­vid­u­als for mere triv­ial acts, hav­ing re­gard to the con­text of the term ‘pub­lic or­der’ as used in the Reg­u­la­tions,” his at­tor­neys said.

They not­ed that when the SoE was de­clared by Pres­i­dent Chris­tine Kan­ga­loo late last year, it (the SoE) was based on an in­crease in the spate of vi­o­lent crime be­ing com­mit­ted by crim­i­nal gangs.

“There is no ma­te­r­i­al be­fore to ev­i­dence a re­al risk of vi­o­lent as­sem­bly or wide-scale ri­ot to jus­ti­fy the spe­cif­ic pow­ers giv­en to ar­rest per­sons in re­la­tion to en­dan­ger­ing pub­lic or­der,” they said.

They claimed that the reg­u­la­tions were not “care­ful­ly tai­lored” based on the sit­u­a­tion iden­ti­fied by the Pres­i­dent.

“The claimant fur­ther con­tends that the im­pugned reg­u­la­tions are un­con­sti­tu­tion­al on the ba­sis that they are not ra­tio­nal­ly con­nect­ed to the pur­pose de­scribed by the Pres­i­dent in her state­ment to jus­ti­fy the procla­ma­tion de­clar­ing that a state­ment of pub­lic emer­gency ex­ists,” they said.

They al­so point­ed out that the reg­u­la­tions did not clear­ly de­fine the pa­ra­me­ters of the of­fences, and no train­ing was pro­vid­ed to po­lice of­fi­cers.

“There is no ev­i­dence that the or­di­nary po­lice of­fi­cer is aware of the nu­ances of the prin­ci­ple of le­gal­i­ty, nor is there any pro­mul­ga­tion of pol­i­cy by the Po­lice Ser­vice on the re­stric­tions/guid­ance in in­ter­pret­ing this pow­er us­ing spe­cif­ic ex­am­ples of in­stances in which this should not be used,” they said.

They al­so claimed that cit­i­zens were not giv­en le­gal cer­tain­ty over what con­duct may be pro­hib­it­ed.

“The claimant con­tends that the im­pugned reg­u­la­tions are dis­pro­por­tion­ate in­so­far as they cre­ate too broad of a dis­cre­tion which can be ap­plied to sub­ject per­sons to se­ri­ous in­cur­sions in­to their en­trenched fun­da­men­tal rights,” they said.

Per­sad was al­so rep­re­sent­ed by Kristy Mo­han.

In Jan­u­ary, at­tor­ney Dayadai Har­ri­paul threat­ened le­gal ac­tion over a gun amnesty in the reg­u­la­tions.

The AG’s Of­fice ini­tial­ly claimed that the amnesty had no ef­fect, as the re­quired time pe­ri­od was not pre­scribed. The Cab­i­net then de­cid­ed to re­move the pro­vi­sion which was in­clud­ed for pre­vi­ous SoEs, in­clud­ing in 2011.