Your rights under the State of Emergency
Part 1: Understanding the powers of detention and your rights if detained
On the 30th December, 2024 a State of Emergency (‘SOE’) was declared by the President pursuant to the powers conferred under Sections 8-12 of the constitution.
The Emergency Powers Regulations, 2024 (‘the Regulations’) give law enforcement authorities wide powers of arrest and detention that are further reaching than what is usually authorized under the common law. Understanding the procedure and limitations of those powers, it is important to ensure accountability to the citizenry. The Regulations allow for two types of detention; firstly, detention under Regulation 14 and, secondly, preventative detention pursuant to an order of the Minister of National Security.
Detention Under Regulation 14
A police officer may arrest anyone without a warrant if they suspect the person has acted, is acting, or is about to act in a way that harms public safety or order, or has committed or is about to commit an offence under the regulations. The officer may use whatever force is necessary to make the arrest or prevent escape. Once arrested such a person can be detained for the purposes of inquiries. This regulation widens the normal powers of arrest and detention which usually requires reasonable cause to suspect the person committed an arrestable offence.
The initial period of detention under Regulation 14 cannot exceed 48 hours. However, a Magistrate or a police officer with the rank of Assistant Superintendent or higher can authorize extending the detention up to a further seven days if they are satisfied the inquiries cannot be completed within 48 hours.
Preventative Detention
The powers of arrest and detention are usually limited to instances where a person is suspected of or charged with having committed a crime. However, Regulation 15, together with the accompanying Schedule allows for an additional power of detention called “preventative detention”.
Under the Schedule, the Minister of National Security has the power to make a detention order if satisfied that preventive detention is necessary to prevent a person from acting in any manner prejudicial to public safety or public order or the defence of Trinidad and Tobago. The order must state concisely the grounds for detention and be published in the Gazette within 7 days.
Once a detention order is made against someone, any police officer may arrest that person. Thereafter, that person may be detained at a place and under conditions as directed by the Minister. Under the Detention of Persons (Discipline and Place of Detention) Directions, 2025 the Minister has directed that Carrera Convict Prison, Golden Grove Women’s Prison and Remand Prison, and Eastern Correctional Rehabilitation Centre would be used as detention centres.
Detainees are entitled to be provided with books and writing equipment, visits and to send and receive letters. Procedures have also been put in place to punish detainees for breaches of discipline such as swearing or using other improper language, possession of unauthorised articles and inciting riots.
Rights of a Detained Person
While an SOE allows for the limitation of constitutional rights, this does not mean that all your rights are suspended. The infringement of constitutional rights under the Regulations must be reasonably justifiable for the purpose of dealing with the situation that exists during that period.
The Regulations give persons under preventative detention the following rights:
- They must be served a copy of the detention order and informed of the reason for their detention in a language they understand;
- They must be informed of their right to a legal advisor at their own expense and allowed to communicate with their legal advisor without being overheard; and
- They can request a review of their case before a Tribunal.
The Review Tribunal
A Tribunal was established for the purpose of reviewing the case of any person under preventative detention. The Tribunal must consist of a chairman (who must be an Attorney-at-Law) and two other members appointed by the Chief Justice. Procedural Guidelines were issued by the Review Tribunal on 9th January 2025 and would form part of a subsequent series.
Noteworthy, a detainee may request a review of his case at any time during his detention, but can only make another request after six months from his last request. Further, he has the right to have legal representation in presenting his case to the Tribunal. If the detainee does not have sufficient means to obtain legal representation, he can apply to the Tribunal for a legal representative to be assigned to him.
Upon the conclusion of the review the Tribunal prepares a report to the Minister which includes its opinion on whether or not there is sufficient cause for the detainee’s detention and any recommendations concerning the necessity or expediency of continuing the detention. The Minister is not bound by the opinion of the Tribunal but has the discretion to revoke the detention order at any time, especially if the Tribunal finds that there is not sufficient cause for the detention.
Removal of Remedies for Detention
Where a person has been detained in accordance with Regulation 14 or by order for preventative detention the Regulations prohibit the granting of bail. Further, the remedy of a writ of habeas corpus, which allows a High Court Judge to review the legality of any detention, is also prohibited.
Submitted by:
Shane Patience
Public Defender II Junior
Shaun Morris
Public Defender I
Public Defenders’ Department
Legal Aid and Advisory Authority,
23 Stanmore Avenue, Port of Spain.
Contact: 638-5222
Email: [email protected]
Website: laaa.org.tt