Attorney General admits: SoE gun amnesty not in place

THERE is no gun amnesty in place at this time.

This is because Regulation 11 of the Emergency Powers Regulations 2024 is not yet operational, as the amnesty period has not been prescribed.

The Attorney General and the Minister of National Security have said no action would be taken to activate the regulation over the next seven days.

The chamber director of the Attorney General’s Secretariat, Solange de Souza, gave this assurance on January 7 to attorney Gerald Ramdeen.

Ramdeen issued a pre-action protocol letter challenging Regulation 11, which provides immunity from prosecution for individuals surrendering firearms, ammunition, or explosives during a prescribed amnesty period.

According to the regulations: "No person who surrenders any firearm, ammunition or explosive during any period that is prescribed, and otherwise in accordance with an Order to surrender, shall be prosecuted under the Firearms Act or regulation for illegally purchasing, acquiring or possessing such firearm, ammunition or explosive prior to the time of such surrender or at that time."

The regulations, which set out the conditions under which the state of emergency (SoE) will be carried out, were gazetted after the President declared the SoE on December 30.

The SoE was invoked after the police gave  information of “imminent additional gang-related reprisal attacks, involving the use of high-calibre weapons and a resulting threat to public safety,” then-acting attorney general Stuart Young said at a media briefing.

In the December 6 pre-action letter, Ramdeen said his client was “troubled and concerned” that the effect of Regulation 11 “constitutes unconstitutional Executive overreach” as it conflicts with section 90 of the Constitution, which vests exclusive prosecutorial powers in the Director of Public Prosecutions (DPP).

“The effect of Regulation 11 is to seek to permit the Executive to exercise powers that are properly and constitutionally vested in the DPP and the DPP alone.

“Neither the Constitution nor any written law vests in the Executive the power to grant an immunity from the commission of a criminal offence. In order to confer immunity, if this is possible at all, the legislative power of the State has to be employed and the requirements of section 54 of the Constitution have to be satisfied. This was not done in the present case.”

Ramdeen represents attorney Dayadai Harripaul.

He said granting the amnesty fell outside the executive’s jurisdiction and undermined the DPP’s independence.

“The independence of the DPP and the insulation from interference by any other arm of the State is one of the most important protections afforded to the citizens of this country against arbitrary and unlawful actions of the State by the drafters of the Constitution.

“This is especially so in a democracy that is polarised and divided by deep political views and ethnic divisions that we have inherited from our historical development as a budding democracy.”

Ramdeen also contended that Regulation 11 undermined public safety by allowing offenders to evade prosecution, potentially jeopardising the integrity of the justice system and the safety of citizens.

“The public interest cannot be served by allowing persons to contravene the most serious laws of our country and not be prosecuted.

“The State cannot be permitted to grant immunity to persons by virtue of these regulations, especially in times of public emergency.

“Such a power does not exist under the emergency powers of the Constitution.

“Such a power does not reside in any existing law and such a power can only be conferred by the legislative arm of the State…

“No one having the best interest of the security and safety of our country and the democracy we enjoy and who understands the importance of upholding the rule of law will seek to uphold such a provision.”

Ramdeen urged the government to withdraw Regulation 11 in 24 hours to preserve the public interest and uphold the rule of law. He warned that failure to do so would result in legal proceedings seeking declarations that the regulation is unconstitutional and void.

AG’s response

A day later, De Souza, in her letter, asked Ramdeen to hold his hand on filing a legal claim until the Government obtained advice from senior counsel to determine the merits of the proposed challenge and any necessary remedial measures “to ensure the constitutionality of the intended amnesty.”

She said a substantive response would be provided in seven days.

De Souza also advised that Regulation 11 was not yet in operation.

“We note your concern about the implementation of Regulation 11 in the meantime and in this regard wish to draw to your attention the fact that Regulation 11 is triggered by the surrender of firearms, ammunition and explosives during a period to be prescribed.

“As you are no doubt aware, that period has not yet been prescribed and as such it is not yet possible to action the amnesty which is contemplated.”

She also gave the assurance of the AG and the MNS that no actions would be taken to activate the regulation until a substantive response was provided.

“In the circumstances, while due consideration is given to your concerns, the Honourable Attorney General and the Minister of National Security undertake to ensure over the next seven days that the amnesty period will not be prescribed so that the operation of Regulation 11 will not be triggered pending your receipt of a substantive response.

“We trust that your client will see fit to await the substantive receipt of our response as the matter she wishes to raise will not be prejudiced in any way by so doing.”

At a media conference on December 31, police legal officer acting Sgt Zaheer Ali admitted the police were seeking to clarify the issue of the amnesty as set out in the regulations.

Opposition Leader Kamla Persad-Bissessar also raised the legality of the gun amnesty at a recent political meeting.

She said such a measure could not be implemented by regulation only and maintained the Government had to go to Parliament to get a special-majority vote.

“The current Regulation 11 concerning a gun amnesty was also in the 2011 SoE regulation, (but) a gun amnesty cannot be implemented by regulation only; they must come to Parliament to get a special majority vote. So there is no gun amnesty in effect at the moment, despite what may be reported.

“Regulation 11 regarding a gun amnesty has the effect of unlawfully fettering the discretion of the DPP under section 90 of the Constitution. Section 90 of the Constitution is one of those provisions to which section 54(3) of the Constitution applies and is a heavily entrenched provision.

“Any amendment to this provision cannot be lawful unless it receives two-thirds of the support of the members of both Houses. Such a provision cannot be lawfully passed by regulation, even under a SoE,” Persad-Bissessar said.

The House of Representatives will sit on January 13 to debate the SoE and its possible extension.

At a news conference at the Office of the Prime Minister, Central Administrative Services in Tobago on January 3, the Prime Minister said government will follow the law as it pertains to the declaration of the SoE.

"We have 15 days in which to go to the Parliament, because we still remain a country under law."

Dr Rowley added that if the Parliament is not convinced of the merits of the SoE, it will end.

The order paper shows a motion in Dr Rowley's name which asks the House to approve an extension to the SoE for three months

By simple majority vote, in accordance with section 10 of the Constitution, the House can extend the SoE by this period.

Any extension beyond a total of six months requires a three-fifths majority vote in the House and Senate.