Fri | May 24, 2019

Letter of the Day | States of emergency don’t obviate humane rights

Published:Tuesday | December 4, 2018 | 12:12 AM


Being mindful of, and in full agreement with, Gordon Robinson's published view- that the three states of emergency (SOEs) declared so far in 2018 lack constitutionality - I wish to make a few observations concerning them, nonetheless.

Under an SOE, which contemplates a brief period to take charge of, and put down, the "sudden state of danger" - as the Oxford Dictionary puts it - our Constitution saves from challenge the acts of the State carried out under the laws passed (The Emergency Regulations, mainly) to deal with the emergency. Hence, Section 13 (9) provides, in part, that the actions taken under those laws may trespass on our rights, once they pass the test of being "reasonably justifiable" to deal with the situation during the state of emergency.

Though Section 14, which guarantees freedom of liberty, is suspended during a SOE, the test of "justification", in my humble opinion, does not have the reach of waiving the rights of detainees based on our history and our values under Section 14 (5). This section provides that:

"Any person deprived of his liberty shall be treated humanely and with respect or the inherent dignity of the person."

Using a tenet of the American constitution, this provision respectfully creates an "inalienable right" for our citizens, the denial of which is incapable of being constitutionally sanctioned, as long as we remain part of the civilised group of nations. It constitutes a restraint on the State that makes subhuman conditions for detainees impermissible. This is more so bearing in mind that an SOE suspends the 24-hour limits on detentions prohibiting judicial supervision/intervention, as is provided for under the Bail Act, and also suspends the fundamental relief of habeas corpus.

If I am correct, all agencies of the State (public defender included), NGOs, and lawyers of detainees must be listened to, and permitted to challenge the inhumane conditions under which detainees are being kept, notwithstanding the declaration of a state of emergency.