DA­REECE PO­LO

Se­nior Re­porter

da­reece.po­lo@guardian.co.tt

There are mixed views from lawyers to At­tor­ney Gen­er­al John Je­re­mie’s re­cent warn­ing about so­cial me­dia com­men­tary by cit­i­zens dur­ing the on­go­ing State of Emer­gency (SoE), with some say­ing his com­ments do not sug­gest there is any le­gal breach but oth­ers urg­ing cau­tion about what is said on­line as well as over the pos­si­bil­i­ty of sti­fling of free speech.

Je­re­mie made the state­ment in Par­lia­ment on Fri­day, short­ly be­fore law­mak­ers vot­ed to ex­tend the SoE by three months. He de­fend­ed the de­ten­tion, dur­ing the last SoE, of a woman who shared an im­age of Prime Min­is­ter Kam­la Per­sad-Bisses­sar’s home and tagged Venezue­lan of­fi­cials while sug­gest­ing it be tar­get­ed.

Say­ing threats against the PM will not be tol­er­at­ed dur­ing the lat­est SoE, Je­re­mie said, “In some ter­ri­to­ries, you go to jail for that. In oth­er ter­ri­to­ries, you are shot for that.”

High­light­ing the No­vem­ber de­ten­tion of Olive Green-Jack dur­ing the pre­vi­ous SoE for com­ments made on Face­book, Je­re­mie said, “This would have been not just a ba­nana re­pub­lic; we would have been a sil­ly coun­try if we did not take ac­tion on that. And I am proud to say that I had some­thing to do with tak­ing ac­tion on that. Be­cause that is be­hav­iour that is not per­mis­si­ble and that, as long as I have life in me, I will not per­mit.”

His claim sparked pub­lic con­cern yes­ter­day about whether Gov­ern­ment in­tend­ed to use the SoE to sti­fle free­dom of speech.

Con­tact­ed on the is­sue, Crim­i­nal Bar As­so­ci­a­tion pres­i­dent Is­rael Khan said the AG’s in­volve­ment did not amount to a con­sti­tu­tion­al breach and ar­gued that au­thor­i­ties could not ig­nore state­ments per­ceived as threats.

“You can­not say the Prime Min­is­ter, let us say, for ex­am­ple, they’re say­ing that the Prime Min­is­ter should be shot, or should be killed, for some or var­i­ous rea­sons. You can’t ig­nore such a state­ment with the crim­i­nal­i­ty in the coun­try, be­cause they might have some mad per­son tak­ing that up­on them­selves to shoot the Prime Min­is­ter, or shoot the At­tor­ney Gen­er­al, or shoot the Leader of the Op­po­si­tion, or shoot the Chief Jus­tice, or even shoot an or­di­nary cit­i­zen,” Khan said.

“So, it de­pends on what you are say­ing. You have the right to march peace­ful­ly and all that. That is your de­mo­c­ra­t­ic right. But un­der the State of Emer­gency, those rights have been sus­pend­ed. That is in the Con­sti­tu­tion.”

Khan said the AG’s role is pri­mar­i­ly ad­vi­so­ry and not op­er­a­tional.

“The sep­a­ra­tion of pow­ers is that the Ex­ec­u­tive, which the At­tor­ney Gen­er­al is part of the Ex­ec­u­tive, will make cer­tain de­ci­sions and the Ju­di­cia­ry will in­ter­pret what­ev­er they di­rect, whether it’s le­gal or not le­gal. And the po­lice are part of the Ex­ec­u­tive, come un­der the di­rec­tion of the Min­istry of Na­tion­al Se­cu­ri­ty, and the At­tor­ney Gen­er­al is the ad­vi­sor to the Gov­ern­ment, not to the Ju­di­cia­ry.”

He added, “So, what he might have meant is that he ad­vised cer­tain steps to be tak­en, and ad­vised on the le­gal­i­ty of cer­tain ar­rests.”

How­ev­er, As­sem­bly of South­ern Lawyers pres­i­dent Saira Lakhan said the is­sue high­lights the need to bal­ance na­tion­al se­cu­ri­ty con­cerns with con­sti­tu­tion­al pro­tec­tions.

“Let me state at the out­set that threats of vi­o­lence against any pub­lic of­fi­cial are whol­ly un­ac­cept­able and must be con­demned in the strongest pos­si­ble terms. This ap­plies not on­ly to the Prime Min­is­ter, but to all per­sons in pub­lic life, in­clud­ing mem­bers of the Op­po­si­tion, mem­bers of Par­lia­ment, judges and oth­er of­fice hold­ers. In a de­mo­c­ra­t­ic so­ci­ety gov­erned by the rule of law, po­lit­i­cal dis­agree­ment must nev­er de­scend in­to threats or in­tim­i­da­tion,” Lakhan said.

“At the same time, while the safe­ty of pub­lic of­fi­cials is an im­por­tant re­spon­si­bil­i­ty of the State, the ex­ten­sion of a State of Emer­gency rep­re­sents an ex­tra­or­di­nary use of ex­ec­u­tive pow­er and must there­fore be ex­er­cised with cau­tion, trans­paren­cy, and re­spect for con­sti­tu­tion­al rights and free­doms.”

Lakhan al­so warned that au­thor­i­ties must care­ful­ly dis­tin­guish be­tween gen­uine threats and po­lit­i­cal speech when re­spond­ing to on­line com­men­tary.

“Par­tic­u­lar care must al­so be tak­en when en­force­ment ac­tion is con­tem­plat­ed in re­la­tion to on­line speech or pub­lic com­men­tary. There must re­main a clear and prin­ci­pled dis­tinc­tion be­tween gen­uine threats of vi­o­lence, which are prop­er­ly the sub­ject of crim­i­nal sanc­tion, and ex­pres­sions of po­lit­i­cal opin­ion, crit­i­cism, or dis­sent, which are pro­tect­ed in a de­mo­c­ra­t­ic so­ci­ety.”

Mean­while, con­sti­tu­tion­al at­tor­ney Gre­go­ry Delzin said in­di­vid­u­als de­tained un­der emer­gency reg­u­la­tions re­tain the right to chal­lenge such de­ci­sions through the courts.

“So, there’s a process, right, where un­der the reg­u­la­tions, you could make a com­plaint if they make a de­ten­tion or­der against you. But you could al­so en­gage in ju­di­cial re­view to see whether the de­ci­sion was ra­tio­nal.”

Delzin added that the AG’s state­ment does not nec­es­sar­i­ly sug­gest that he may have ex­er­cised im­prop­er au­thor­i­ty dur­ing the last SoE.

“It’s the po­lice that as­sess­es the re­port and as­sess­es the na­ture of the threat and if the po­lice feel that there’s a re­al threat, they could make nec­es­sary rec­om­men­da­tions. So, if he says he’s be­hind it, what I think he’s re­al­ly say­ing is that he may have made a re­port. Any­body could do that.”