The Jeff Cumberatch Column – Emergency Powers and Good Governance
‘Emergencies’ have always been the pretext on which the safeguards of individual liberty have been eroded. Friedrich August von Hayek
It seems unlikely that I should be personally affected by the operation of the proposed legislation. After all, I am essentially a homebody and scarcely to be found on the road at “ungodly” hours so as to be inconvenienced by a traditional curfew and it is at least doubtful that my neighbourhood would be subject to any police cordon as a designated area as is provided for in the Act. Yet, as a fairly liberal thinker so far as human rights are concerned, there are more things than a few that trouble me about the provisions of the proposed Police (Amendment) Act 2017. Too besides, I am a fan of Martin Niemöller’s celebrated poem. You know; “First they came for the socialists…”
Permit me to concede from the outset that the use of emergency powers by the modern state is and has been since time immemorial a widely accepted aspect of constitutional governance. In a brilliant article titled The Law of the exception: A typology of emergency powers published in 2004, Professors Frerejohn and Pasquino of New York University argue:
When the public safety is seriously threatened, there may be a need for quick and decisive action that cannot perhaps, wait for the deliberate pace of ordinary constitutional rule…
They posit further that this is a central dilemma of a liberal constitutional government in that the rights and protections it provides and preserves can prevent the government from responding efficiently and energetically to enemies that would destroy those rights and perhaps even the constitutional order itself. Indeed, as they note, this has been the case since Roman times, for in cases of emergency the Roman Senate could direct the consuls to appoint a dictator for a temporary period of up to six months. This dictator was authorized to suspend rights and legal processes and to marshal military and other forces in order to deal with the threat of insurrection or invasion.
Further, the mutual trust and confidence that ought to subsist between the citizen and the State should entail, whenever a substantial limitation of rights is proposed by the State, as full a briefing to the citizenry, as may be practicable without compromising state security, should be provided before the institution of such a regime.
Section 25 of our Constitution reflects this thesis to some extent though, of course, unlike the ancient Romans, the concept of a dictator is antithetical to our ethos of constitutional governance. The section provides for the circumstances when a state of emergency is deemed to exist; namely, when Barbados is engaged in warfare or where there is a proclamation by the Governor General, subject to certain stipulated conditions, that a state of public emergency exists or where there is in force a resolution of each House supported by the votes of not less than two-thirds of all the members of that House declaring that the democratic institutions in Barbados are threatened by subversion.
Moreover, where the state of emergency exists as a result of a gubernatorial proclamation, as in Roman times, there is a six month period to which this may be limited though it is subject to extension from time to time for further periods of six months by resolution of a majority of all the members of the House of Assembly.
It seems clear then that our system contemplates the legitimate erosion by the Executive, with Parliamentary approval, of certain fundamental rights in times of national emergency. The actuality is, however, that in our system, there is no concrete separation of power between the executive and the Parliament. It might be for this reason therefore, that the relevant section requires not merely an ordinary, but a special majority in both Houses for the effectiveness of any parliamentary resolution that democratic institutions in Barbados are threatened by subversion.
There is little doubt that the proposed legislation, even though not titled emergency powers legislation, approximates to this by enlarging the police power, with a concomitant loss of liberty on the part of an affected citizen. For instance, clause 19A (2) provides as follows:
The Commissioner may, with the written approval of the Minister impose either a curfew for a period not exceeding 2 days, or a special investigation period in a designated area in Barbados, in order to preserve and promote peace, public order or public safety and investigate where
(a) an incident of serious violence has occurred in any (sic) area in Barbados; or
(b) (b) an incident of serious violence may occur in any area in Barbados”
During this period of curfew, police powers are significantly enhanced. A member of the police force, under the supervision of an officer of the rank of Inspector or above, will be able to, inter alia, between 5 am and 8 pm (scarcely ungodly), search any premises in the designated area without warrant where that member of the force (the constable and not necessarily the supervising officer) has a reasonable suspicion that an offence has been committed, is being committed or is about to be committed on the premises; to stop and search any person walking or sitting in the designated area where that member of the Force has a reasonable suspicion that an offence has been committed, is being committed or about to be committed; and to search any item or anything being carried or held by that person for an offensive weapon, any illegal drugs or stolen property and to stop and search any vehicle in or any vehicle entering or exiting the designated area, its driver or passenger for an offensive weapon, an illegal drug or stolen property where that member of the force has a reasonable suspicion that an offence has been committed, is being committed or about to be committed.
It is to be noted that the threshold of “reasonable suspicion” is perhaps the lowest form of justification for police action. It has been determined that it may arise from information that is different in quantity or content from and less reliable than that required to establish probable cause, a more favourable threshold to the accused. Furthermore, the existence of “reasonable suspicion” is to be determined after the impugned event and not at the time of or prior to the police action.
It seems clear that the local authorities are contemplating a period of substantial social disruption. Existence of the mutual trust that I referred to earlier would ordinarily require that the populace be taken into the confidence of the authorities, unless this may lead to a compromise of the strategic initiatives necessary to combat this imminent threat to the social order.
In the absence of such information, people are liable to ascribe all sorts of nefarious motives to the government on the enactment of the proposed legislation and worse, to become increasingly fearful of the impact on them and their families of whatever might ensue from the anticipated insurrection. Silence is clearly not golden here. There is a clamant need for conversation.