“[…] The police are to ensure that laws are adhered to. The police cannot make laws. If we go in that direction we are creating a police state.
“This SoE was explicitly proclaimed by the president to deal with a health crisis… The restrictions—including the hours of curfew—should therefore be determined by the requirements to stop the virus; and these can only be decided by the health professionals who guide the minister of health/cabinet and not the CoP…”
The following statement regarding concerns about regulations for the state of emergency was submitted to Wired868 by Movement for Social Justice political leader David Abdulah:
The Movement for Social Justice (MSJ) has never been afraid to speak truth to power. In August 2011, even though we were then a member of the People’s Partnership government, we spoke up against the blanket provisions of the regulations then proclaimed under the state of emergency.
Specifically, we called for the regulations to be amended. Since it was supposedly declared to deal with a ‘crime’ situation, the MSJ stated that other civil liberties such as the right to freedom of expression and assembly and the ability for trade unions and others to engage in peaceful demonstrations should not have been curtailed.
We argued then that in any event, under the existing law, the commissioner of police had the power to restrict and/or refuse public meetings and demonstrations. Our position was rejected and, based on the evidence, it was clear that the SoE was never about stopping crime but stopping labour mobilisations.
We therefore will not be quiet now about certain aspects of the present state of emergency.
Firstly, we do not disagree with a state of emergency being used as a tool to deal with what is certainly a very grave public health crisis—as the number of cases and deaths due to Covid-19, have spiralled out of control.
However, we do wish to point out certain concerns:
The regulations at clause 6, states that ‘the commissioner of police may by order vary the curfew times set out in this regulation’. We disagree totally with this. The attorney general claims that the constitution gives the commissioner this power. We disagree.
The constitution at section 7(1) clearly states that it is the president who makes regulations to give effect to a state of emergency and it is the president (not the CoP) who must publish the regulations. It is established that the president acts on the advice of the prime minister/cabinet or minister.
There is no provision for the CoP to make regulations. Under section 123 A of the constitution, ‘Powers of the Commissioner’, there is no reference to his ability to make such regulations.
The police are to ensure that laws are adhered to. The police cannot make laws. If we go in that direction we are creating a police state.
This SoE was explicitly proclaimed by the president to deal with a health crisis, which is provided for in the constitution. It was not called to deal with crime or an ‘uprising’.
The restrictions—including the hours of curfew—should therefore be determined by the requirements to stop the virus; and these can only be decided by the health professionals who guide the minister of health/cabinet and not the CoP.
The power to alter the hours should not be conferred by the president to the CoP. We therefore call on the attorney general to have the regulations amended so that it is only the president who can amend the curfew hours.
We congratulate the attorney general for drafting the regulations to reflect the fact that the emergency is to specifically address a public health crisis. Thus, virtually all the regulations speak explicitly to this objective.
However, we believe that clause 8 should be amended by removing the words ‘or to public order’ since the inclusion of this phrase gives the police officers (and defence force) the power to ‘arrest without warrant, a person who he reasonably suspects has acted or is acting or is about to act in a manner prejudicial to …public order…’
The said clause 8 gives the police the power to ‘arrest a person without warrant who has acted, is acting or is about to act in a manner prejudicial to public health and public safety’.
This is consistent with the object of the health emergency. Public order is not, and we call on the attorney general to have the regulations amended to reflect this. We do not want or need omnibus powers to be given to the security forces, as this has the potential to lead to abuse of power.
The media has on several occasions reported, and the prime minister himself may have contributed to the wrong impression in his statement announcing the state of emergency as being in force until 4 July. This is false.
Fortunately the AG clarified this but not all the media have properly reported what was said. Therefore we wish to advise citizens that the constitution specifically states that the proclamation of a state of emergency by the president is for 15 days in the first instance.
However, before the end of the 15 days, the government can convene a sitting of the House of Representatives and the House, by a simple majority vote, can extend the life of the emergency by up to three months; and again, if necessary, for no longer than a total of six months.
If the emergency is to last longer than six months, then both the House and Senate must give approval with a vote of no less than three fifths of the members. The emergency regulations cannot exist outside of the existence of an emergency that has been proclaimed and is in effect.
It therefore cannot be open-ended or with no expiry date, as some media have erroneously reported. We encourage the media to carefully report the facts as it is the Health Regulations (Legal Notice 143 of 2021) that are in effect until 4 July, not the Emergency Regulations (Legal Notice 142 of 2021).
The MSJ urges the population to abide by the provisions of the state of emergency and Health Regulations as everyone has to do his/her part to battle the Covid-19 pandemic. We will, however, identify in a subsequent statement our concerns about the management of the pandemic.