Although some sectors of society are calling for a State of Emergency (SOE) as a preventative measure against the spread of COVID-19, many in the legal fraternity are of the view that the time for an SOE has not yet arrived.
Speaking with the Guardian Media, defence attorney Fareed Ali says this country’s Constitution clearly highlights the particular conditions that ought to be satisfied before an SOE may be declared. In his opinion, “to do in this moment would be premature”.
Fareed Ali explains that The President, Her Excellency Paula Mae Weeks, has the constitutional prerogative to proclaim an SOE, but only if there is a basis for it, as the President can only do as the Constitution of Trinidad and Tobago allows her to do.
“To declare an SOE, there must be a constitutional ground for so doing,” he points out. “Her Excellency, according to Section 8(1) of the Constitution of Trinidad and Tobago, may make a proclamation declaring a SOE if there are grounds for it. The power to proclaim same cannot be arbitrarily exercised.”
“S.8(2) delineates that the president may do so if there is an outbreak of a pestilence or infectious disease,” the defence attorney notes. “According to S.9(1), within 3 days subsequent to Her Excellency proclamation she must present to the Speaker of the House the grounds or reasons for her proclamation of a SOE. Thereafter, the Speaker sets a date for a debate of the grounds of the President’s decision.
S.9(2) of the Constitution allows for the SoE to remain in place for up to 15 days following its proclamation. S.10(1) allows for an extension of time of the SOE for additional periods of up to three months and an even larger aggregate of as much as, but not exceeding, a period of 6 months. To achieve the latter requires a simple majority within the House of Representatives. In addition, S.10(2) allows for aggregates of 3 month extensions beyond what is provided for in S.10(1) for periods of three months, but the latter would require the additional requirement of three-fifths majorities of all Members of each House.
“In this moment it appears there is an outbreak of a pestilence or an infectious disease that threaten the state of T&T. The scope of the threat ought to be analysed by a recognised authority; one that can speak to the nature and substance of the threat the country faces at this national juncture,” Ali said.
“The spread of information by way of social media tends to telescope to the wider population that an SOE ought to be declared. However, if the Caribbean Public Health Agency (CARPHA) is the sole body that can speak to the statistical data, on which The President must ground the basis for her would-be proclamation, then CARPHA’s statistical data alone will dictate Her Excellency’s course of conduct,” he added.
Ali said the CARPHA figures surrounding the viral infection ratio and death numeric determines the measure The President ought to be guided by.
“If it is that we are to repose confidence in the Chief Medical Officer (CMO), Dr. Roshan Parasram, and Minister of Health, Terrence Deyalsingh, time alone will tell whether the trust placed in these men was well founded,” Ali observes.
“The President cannot allow her personal feelings or public opinion to guide her decision making. No amount of political undercurrent emanating from any section of the wider community must fuel her course of conduct. However, the powers vested in our President and the incumbent Government and Parliamentary Structures must be trusted at this time, ” Ali said.
He said until there is a threat of community spread among the population, the President cannot proclaim an SOE.
“Presidential proclamation is guided by reason. She must be able to justify the grounds of her proclamation before parliament and if she chooses to act,” he notes, “it must be able to withstand the test of reasonableness. Otherwise she may be acting outside of her powers or unconstitutionally.”
He added: “There are several rungs on the ladder to ascend before the threshold may be satisfied and therefore, trigger her action. Until that threshold is achieved, T&T may not be placed under an SOE. If the current regulations are followed and the country self regulates effectively, there may be no need for an SOE.”