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Sunday, 18 September 2011

State of Emergency: Citizen Rights

Q: With all the incidents of Military and Police abuse of powers during the SoE, what are our rights as citizens?

A: I recently heard a story from my friend and his wife who were held at Chaguanas Police Station (the most corrupt police station in Trinidad and Tobago) for being outside after the curfew. The car shut down close to curfew time, but as responsible adults, instead of waiting to be arrested, they locked their car and walked to the station to procure a permit, but they were greeted with hostility as the Officers saw an opportunity to flex their muscles.

While there, they observed the officers getting ready to go out on patrol around 10:45pm and they were very excited at the prospect of being able to assault, arrest, or possibly take bribes from members of the public who were unfortunate enough to still be outside. The Officers were making comments like, "Licks go pass tonight"and "I sure we locking up plenty man tonight". The same officers who have sworn to protect and serve the citizens of Trinidad and Tobago with pride.

Anyway, I have disgressed and I apologise. To answer your question, I found some very useful information on the Trinidad and Tobago Defence Force's website:

What is the extent of the powers of the Military in a State of Emergency?
The President acting in accordance with Section 7 of the Constitution has issued the Emergency Powers Regulations 2011. The main legal authority for members of the Trinidad and Tobago Defence Force is contained in Regulation 22 (1) which states that the Commissioner of Police may request assistance from the Chief of Defence Staff during this SoE and where such a request for assistance has been exercised under Reg. 22 (1) all members of the Force acting under the directions of the Chief of Defence Staff ‘shall have the powers of a police officer’ for the duration of the SoE by virtue of Reg. 22(2). The powers of members of the Trinidad and Tobago Defence Force under these Regulations include:

Reg. 10 -power to stop and search for firearms.

Reg. 15- -power to enter and search any premises; power to stop and search any vessel (Coast Guard), vehicle and person.

Reg. 16-power to arrest and detain person(s): TTDF member must have reason to suspect a person(s) is acting or is about to act in a manner prejudicial to public safety and security; use of force must be reasonably and necessary and their shall be no detention of person(s) in excess of 24hrs (extension allowed up to seven (7) days under authority of a Magistrate or Assistant Superintendent).

Reg. 18- any female persons subject to a search must be search by another female TTDF

Reg. 21 - imposes an obligation on drivers of any motor vehicle to stop when instructed to do so by a TTDF member.

Which rights of citizens are normally affected during a state of emergency?
All derogable rights and freedoms enshrined under Sections 4 and 5 of the Trinidad and Tobago Constitution such as the freedom of movement and freedom of association and assembly under S. 4(g) and (j) are curtailed and /or suspended in a material respect.

What mechanisms are in place to treat with any allegations of misconduct or breaches of the powers that the members of the Defence Force now possess?

The Trinidad and Tobago Defence Force has a two (2) tier system of military justice which is provided for under the Defence Act Chapter 14:01 Laws of the Republic of Trinidad and Tobago.

Tier 1 provides Summary mechanisms deals with less serious of minor breaches of service discipline which is normally adjudicated over by an Officer in Command (OC) or a Commanding Officer (CO) both of whom exercise jurisdiction similar to that of a Magistrate in the Magistrates’ Courts. The main aim of the disciplinary process in Tier 1 is to expeditious treat with the offender and returns him/her to his respective Unit in order to not disrupt the Operational Effectiveness of that Unit.

Tier 2 provides for trial by Court-Martial which resembles the High Court Criminal Court. Access to this Tier is based on an election by the alleged offender or based on a recommendation by the Commanding Officer based on the serious nature of the offence. At Tier 2 the offender is entitled to have a Defending Officer as well as his own civilian Legal Counsel at the trial which is adjudicated over by a civilian Judge Advocate and the members will normally comprise Commissioned Officers. The punishment imposed is quite severe and can result in discharge and/or imprisonment.
The Military Justice System at Tier 2 allows for the exercise jurisdiction over any person subject to military law who commits a civil offence under Section 78 of the Defence Act Chapter 14:01.

Now that you know your rights, ensure that you aren't taken advantage of by rogue Officers in our protectvive services. The other issue is getting any accusations to stick because it will be a citizen's word against theirs.

Important case:
The case of Lawless v. Ireland (1957-61) was the first international court decision, interpreting and applying international human rights law, and the first dispute between an individual and a State to be tried by an international tribunal.

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