Court to hear landscaper's SoE bail challenge

A Belmont landscaper challenging the acting deputy chief magistrate’s decision to deny him bail on ammunition charges under the emergency powers regulations 2024, has been permitted to proceed with his judicial review claim.

Justice Joan Charles granted leave to Afiba Guerra to pursue his claim and ordered an expedited hearing of the substantive matter on February 7.

Guerra’s attorney Keron Ramkhalwhan filed a judicial review application challenging a decision by acting Deputy Chief Magistrate Brian Dabideen to deny him bail under the emergency powers regulations, 2024.

He is seeking to have Dabideen’s decision, made on January 13, quashed and remitted to another magistrate for fresh consideration.

However, Senior Counsel Rishi Dass, who appears for the deputy chief magistrate, argued there was an alternative remedy open to Guerra to apply to a judge in chambers given the magistrate’s orders stated in an extract that bail was denied after considering provisions of the Bail Act.

Admitting there was a degree of ambiguity on the grounds for denying bail, Dabideen is expected to put in an affidavit.

Ramkhalwhan urged the judge to look at the transcripts not only the extract, pointing out that his client was not advised to apply to a judge in chambers for bail after it was denied as is usually done.

Ramkhalwhan was also advised to serve the Office of the Director of Public Prosecutions with the claim ahead of February 7’s hearing.

Ramkhalwhan has previously countered that the law does not provide for an appeal of a magistrate’s decision on bail but instead allows for a fresh application before a judge in chambers. However, he argued that the regulations did not permit this.

“The regulations have suspended the judge-in-chambers bail.”

Guerra, 28, of Upper St Francois Valley Road, Belmont, was arrested at Zachariah Avenue, Thick Village, Siparia on January 9.

He was charged under the SoE regulations and at his first court appearance, Dabideen denied him bail after considering the regulations and the Bail Act. Dabideen had also questioned why the charge fell under the SoE regulations and not the Firearms Act, which carried a higher penalty, but the police told him they were just complying with instructions from their legal unit.

Regulation 17 suspends bail for individuals detained or charged under the SoE. It also prevents individuals from applying for a writ of habeas corpus if denied bail and prevents judges from exercising their jurisdiction over the denial of bail.

Guerra’s lawsuit contends there was no evidence to support Dabideen’s denial of bail, also alleging that the acting deputy Chief Magistrate applied the wrong legal test.

Guerra’s application also contends that Dabideen failed to provide the specific sections of the Bail Act and regulations he relied on to deny bail.