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Article 39 – State of Public Emergency

Martin George & Company > DAILY LEGAL LESSONS  > Article 39 – State of Public Emergency

Article 39 – State of Public Emergency

State of Public Emergency

Jonathan A. Stevenson

       Attorney-at-Law

       Martin Anthony George & Co.

       Attorneys-at-Law

MAGCO DAILY LEGAL LESSONS

DISCLAIMER: Please note this does NOT constitute LEGAL ADVICE or LEGAL CONSULTATION, which you should get from your own Attorneys and this is being shared with the general public for the purposes of information and discussion ONLY.

This lesson provides information on:

State of Public Emergency

  • Constitutionality of a State of Public Emergency (SOPE)
  • Effect of a SOPE
  • The 2021 Regulations
  • The Public Health Ordinance Regulations dated 16th May 2021

By Proclamation dated 15th May 2021, Her Excellency Paula-Mae Weekes, the President of the Republic of Trinidad and Tobago, declared as follows:

  1. “I am satisfied that a public emergency has arisen as a result of the outbreak of an infectious disease [2019 Novel Coronavirus (2019-nCoV)]; and
  2. A state of public emergency exists in the Republic of Trinidad and Tobago.”

As a result, Trinidad and Tobago is currently under a state of public emergency (hereinafter referred to as “SOPE”). In this article, we will examine the constitutionality of a SOPE, particularly the authority of the President to declare one, and the effect of the same.

On 16th May 2021, the President made The Emergency Power Regulations, 2021 (hereinafter referred to as “the 2021 Regulations”) under s.7 of the Constitution of Trinidad and Tobago. We will also examine the 2021 Regulations and the recently published Regulations under The Public Health Ordinance dated 16th May 2021 (hereinafter referred to as “the PHO Regulations”).

Constitutionality of a SOPE

The President’s power to declare a SOPE is derived from s.8 of the Constitution see also (CV2015-00892 Earl Elie v. The Attorney General of Trinidad and Tobago [37]). This section of the Constitution provides as follows:

“(1) Subject to this section, for the purposes of this Chapter, the President may from time to time make a Proclamation declaring that a state of public emergency exists.

(2) A Proclamation made by the President under subsection (1) shall not be effective unless it contains a declaration that the President is satisfied—

(a) that a public emergency has arisen as a result of the imminence of a state of war between Trinidad and Tobago and a foreign State;

(b) that a public emergency has arisen as a result of the occurrence of any earthquake, hurricane, flood, fire, outbreak of pestilence or of infectious disease, or other calamity whether similar to the foregoing or not; or

(c) that action has been taken, or is immediately threatened, by any person, of such a nature and on so extensive a scale, as to be likely to endanger the public safety or to deprive the community or any substantial portion of the community of supplies or services essential to life.”

Therefore, the President is empowered by the Constitution to declare a SOPE where one of the circumstances identified in s.8(2) hereinabove exists (Earl Elie, supra, [86]), including an outbreak of an infectious disease such as COVID-19. In Earl Elie, supra, the Court was tasked with deciding whether a SOPE declared in August 2011 as a result of a spate of murders that had occurred in Trinidad and Tobago was Constitutional. The specific Proclamation of the President which the Court examined, stated as follows:

“(a) I am satisfied that action has been taken or is immediately threatened by persons or bodies of persons of such a nature and on so extensive a scale as to be likely to endanger the public safety; and

(b) a state of public emergency exists in the Republic of Trinidad and Tobago. Given under my Hand and the Seal of the President of the Republic of Trinidad.”

The Court decided that the SOPE was Constitutional because a circumstance under s.8(2) of the Constitution existed, namely that the threat faced by the public in 2011 was a threat to the life of the nation in a literal way: “It seemed clear to me, that the state of Trinidad and Tobago in August, 2011, as portrayed in the evidence before this Court, constituted a threat to the life of the nation in a very literal way. Citizens were being deprived of their lives with such rapidity as to merit the use of the words “a spate of murders”, meaning a flood, deluge or torrent of murders” (Earl Elie, supra, [80]).

Effect of a SOPE

The President has Constitutional emergency powers to make Regulations and issue orders and instructions to deal with any of the situations identified in s.8(2) of the Constitution as outlined hereinabove. This power is derived from s.7 of the Constitution which states as follows:

“(1) Without prejudice to the power of Parliament to make provision in the premise, but subject to this section, where any period of public emergency exists, the President may, due regard being had to the circumstances of any situation likely to arise or exist during such period, make Regulations for the purpose of dealing with that situation and issue orders and instructions for the purpose of the exercise of any powers conferred on him or any other person by any Act referred to in subsection (3) or instrument made under this section or any such Act.

(2) Without prejudice to the generality of subsection (1), Regulations made under that subsection may, subject to section 11, make provision for the detention of persons.

(3) An Act that is passed during a period of public emergency and is expressly declared to have effect only during that period or any Regulations made under subsection (1) shall have effect even though inconsistent with sections 4 and 5 except in so far as its provisions may be shown not to be reasonably justifiable for the purpose of dealing with the situation that exists during that period.”

It is notable that per s.7(3) above, the Regulations may have effect although they may infringe the rights of the people of Trinidad and Tobago as enshrined under sections 4 and 5 of the Constitution. However, the Regulations must be reasonably justifiable for dealing with the situation that caused the SOPE. This was expressed by the Court in Earl Elie, supra, [93] as follows:

“The Emergency Powers Regulations 2011, having been made pursuant to section 7 of the Constitution, are deemed to have effect, even though inconsistent with sections 4 and 5 of the Constitution, “except in so far as its provisions may be shown not to be reasonably justifiable for the purpose of dealing with the situation that exists”.

Such Regulations were made in 2011 and they were known as the Emergency Power Regulations, 2011 (hereinafter referred to as “the 2011 Regulations”). The 2011 Regulations permitted inter alia police officers to enter and search any premises without a warrant and arrest a person whom they suspect may prejudice public safety, without a warrant. These powers were contained in Regulations 15 and 16 as follows:

“15. Notwithstanding any rule of law to the contrary, a police officer may, without a warrant and with or without assistance and with the use of force, if necessary— (a) enter and search any premises; or (b) stop and search any vessel, vehicle or individual, whether in a public place or not, if he suspects that any evidence of the commission of an offence against regulation 9, 13 or 14 is likely to be found on such premises, vessel, vehicle or individual and may seize any evidence so found.

16. (1) Notwithstanding any rule of law to the contrary, a police officer may arrest without warrant any person who he suspects has acted or is acting or is about to act in a manner prejudicial to public safety or to public order or to have committed or is committing or is about to commit an offence against these Regulations; and such police officer may take such steps and use such force as may appear to him to be necessary for affecting the arrest or preventing the escape of such person.”

In determining the constitutionality of these Regulations, the Court would have regard to certain issues: (1) whether the Regulations are proportionate, (2) whether their purpose is sufficiently important for the infringement of a constitutional right, (3) whether the Regulations were rationally connected to the purpose for their creation, and (4) whether the infringement was more than necessary (Earl Elie, supra, [109]).

The constitutionality of the 2011 Regulations was considered in numerous judgments in Trinidad and Tobago. In relation to police powers of arrest, Kokaram J. (as he then was), in CV2015-04084 Anthon Boney v. The Attorney General of Trinidad and Tobago [4] noted that the operative word of Regulation 16 was “suspicion” rather than “reasonable suspicion” or “reasonable ground for suspicion.” As such, a Police Officer could have arrested a person if they held an honest belief in the suspicion that that person was about to commit an act that is prejudicial to public safety: Anthon Boney, supra [49].

The 2011 Regulations were ultimately deemed to be lawful and constitutional by numerous authorities:

  1. Earl Elie, supra [119]: It is therefore my view, that the strong measures prescribed by the Emergency Powers were adequately balanced by the gravity of the crisis, which the national community faced and by the measures, prescribed in the Regulations for protection [of] the rights [of] detained persons.”
  • CV2015-02521 Ashmeed Mohammed v. The Attorney General of Trinidad and Tobago [23]: “The law relevant to this Claim was addressed in the related matter Earl Elie v. The Attorney General of Trinidad and Tobago. For reasons stated in Earl Elie, I held that the State of Emergency and the Regulations were lawful and constitutional.”
  • Anthon Boney, supra, [39]: “The legitimacy of the declaration of the State of Emergency and the Regulations are not in question. The Regulations were passed notwithstanding the inroads made into the fundamental human rights under the Constitution. The Regulations therefore legitimised the temporary suspension of some fundamental liberties.”
  • CV2015-02594 Dominic Pitilal v. The Attorney General of Trinidad and Tobago [18]: “The law as it pertains to the issues raised in this case was discussed in the related matter Earl Elie v A.G. In this claim, I have relied on my general discussion in Elie and have focussed on the specific aspects of this Claim. For reasons stated in Elie, I continue to hold the view that the State of Emergency and the Emergency Power Regulations 2011 were valid, and could not be set aside on the ground of unconstitutionality.”

The 2021 Regulations

Like the 2011 Regulations, the 2021 Regulations permit police officers to arrest without warrants. However, unlike the 2011 Regulations which permit police officers to effect an arrest upon suspicion of a breach, the 2021 Regulations require police officers to have reasonable suspicion. As such, not only must the arresting officer have a genuine suspicion of a breach, he must also have reasonable grounds for forming such suspicion or belief before arresting an offender; the threshold is higher [Anthon Boney, supra [26 – 33].

This power is contained in s.8 of the 2021 Regulations which states as follows:

“8 (1) Notwithstanding any law to the contrary, a police officer may arrest without warrant, any person who he reasonably suspects has acted or is acting or is about to act in a manner prejudicial to public health, public safety, or to public order to have committed or is committing or is about to commit an offence against these Regulations.

(2) A police officer under subregulation (1), may take such steps and use such force as may appear to him to be necessary for affecting the arrest or preventing the escape of such person.”

Additionally, many notable and important provisions of the 2021 Regulations are as follows:

  1. The Regulations have effect during the period of the public emergency per Regulation 14, beginning on 15th May 2021, but no end date has yet been fixed;
  • No person can be outside of their private dwelling, including in a motor vehicle, ship or vessel, during the hours of 9:00 p.m. to 5:00 a.m.: Regulation 4(1);
  • During the hours of 5:01 a.m. to 8:59 p.m. every day, a person shall not be gathered in a public place unless the gathering is for the purposes of providing certain services specified by the Regulations (essential services) and does not exceed five (5) persons at a time; be found at any body of water for recreational purposes; operate a party boat, boat tour, or club; hold public parties; have a public or private pre-school; operate a bar or restaurant; engage in street vending of food or water; consume alcohol in public; participate in any contact or team sports; participate in outdoor sports or exercises in public spaces; or operate any sports club: Regulation 3(3)(1);
  • Primary schools, secondary schools, tertiary institutions or other post-secondary institutions should provide their classes by electronic means: Regulation 3(3)(3);
  • The following places shall remain closed: clubs, theatres, spas, hairdressers, barbers, gyms, and fitness centres: Regulation 4(3);
  • Religious organisations must not be open for religious activities save and except for funerals and weddings where the gatherings therein do not exceed ten (10) persons: Regulation 3(5);
  • Where a police officer considers that a group of people contravenes the Regulations, they may, in addition to their power to arrest and charge such persons, direct the gathering to disperse, direct any person therein to return to their residence, or remove any person from the gathering: Regulation 7(1);
  • A driver of a motor vehicle is required to stop the same upon the request of a uniformed police officer: Regulation 10; and
  • A person who breaches the Regulations commits an offence and is liable on summary conviction to a fine of two hundred and fifty thousand dollars ($250,000.00) and to imprisonment for six (6) months: Regulation 12.

The Public Health Ordinance Regulations dated 16th May 2021

As discussed hereinabove, Regulations issued by the President per s.7 of the Constitution can be made in addition to any other Regulations issued by Parliament. As such, on 16th May 2021, additional Regulations were made by the Minister of Health and confirmed by the President under The Public Health Ordinance Chap. 12 No. 4. Some of the notable and important provisions of these PHO Regulations are as follows:

  1. These PHO Regulations are in effect from 16th May 2021 to 04th July 2021: Regulation 14;
  • No person shall travel in a vehicle or vessel without wearing a face mask, face shield or face covering in a manner which covers their nose, mouth and chin, unless they have a reasonable excuse: Regulation 3(1);
  • No person shall, without a reasonable excuse, be in a public place or at an educational establishment for examination purposes or a religious organisation for funeral or wedding services or for conducting religious meetings by electronic means without wearing a face mask, face shield or face covering in a manner which covers their nose, mouth and chin, unless they have a reasonable excuse: Regulation 4(1);
  • The owner or operator of a business must not allow anyone to enter or remain therein unless they are wearing a face mask, face shield or face covering in a manner which covers their nose, mouth and chin: Regulation 4(3);
  • A person who provides public transport in a motor vehicle shall not carry more than fifty per cent (50%) of the number of persons allowed in a motor car or the number of passengers for which the motor vehicle is licensed to carry: Regulation 5(1); and
  • All air and sea ports or any place where an aircraft or ship or vessel can land, except in relation to air and sea cargo, remain closed to the arrival or departure of aircraft or ships or other vessels carrying passengers unless permitted by the Minister of National Security: Regulation 7. It seems as though the air and sea bridges between Trinidad and Tobago are now closed unless the Minister of National Security order that they be operational.

Conclusion

These are indeed trying times and our authorities are burdened with making difficult and unprecedented decisions. The public is however urged to obey all laws, rules, and regulations passed to keep our people safe and to combat this deadly virus. We reiterate the main points of this Article as follows:

  1. The President of Trinidad and Tobago has a Constitutional power to declare a SOPE where there exists inter alia an infectious disease, such as COVID-19;
  • Following such a declaration, the President has a Constitutional power to make Regulations pursuant to the SOPE to combat the circumstances that caused it;
  • Such Regulations can infringe the rights of the people of Trinidad and Tobago, but they must be reasonably justifiable;
  • Any such Regulations ought to be observed and adhered to by the people of Trinidad and Tobago, failing which they may be liable to an offence;
  • Two sets of Regulations were issued for the people of Trinidad and Tobago to adhere to, namely The Emergency Power Regulations, 2021 dated 16th May 2021 and the Regulations made pursuant to The Public Health Ordinance Chap. 12 No. 4 on 16th May 2021, and some of their pertinent provisions are outlined hereinabove;
  • Should any person of Trinidad and Tobago believe that their rights are infringed as a result of any such Declaration or Regulation, they may challenge the same by approaching the Court.

© MAR­­TIN ANTHONY GEORGE & CO.

MAGCO DAILY LEGAL LESSONS

State of Public Emergency

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