Cabinet to remove 'public order' from SoE regulations after legal challenge

Government has agreed to amend the emergency powers regulations, 2024, to remove the “public order” provision.

Attorney General Reginald Armour, SC, is expected to take the recommendation to Cabinet, his lead attorney Russell Martineau, SC, told Justice Westmin James on February 10.

James was presiding over a lawsuit filed by social activist and blogger Vishal Persad who complained that regulations 12(a), 14(1), and regulation 2 were unconstitutional, void, and not reasonably justifiable for addressing the public emergency. Persad is represented by attorneys Kiel Taklalsingh, Kristy Mohan and Keron Ramkhalwhan.

They have argued that the specific regulations infringe on constitutional rights and are excessively broad in scope.

Persad’s lawsuit argued that the vague and undefined term “public order” could be misused to suppress fundamental freedoms such as free speech, assembly, and political expression.

At the hearing on February 10, Martineau said he had instructions from the Attorney General that he would be taking a note to Cabinet to delete that part of the regulations.

Persad’s attorneys are expected to withdraw the constitutional claim once the regulations were amended. Martineau said they had hoped “this matter would not get to this stage,” citing the State’s responses in the pre-action stage.

However, Taklalsingh defended filing the action, saying there was no previous indication an amendment would be forthcoming and the challenge was justified since in the SoE, access to the courts were limited.

“The action was necessary,” Taklalsingh said, adding that the regulation on “public order” should not have been included given the guidance provided by the Court of Appeal in a ruling involving the 2011 SoE regulations.

However, he thanked the Attorney General and his staff for the position taken.

James said the court noted the State’s position and made no orders for costs.

Persad’s claim contended that neither the President’s official statement nor parliamentary debates referenced threats to public order as a justification for the SoE.

Persad questioned why the regulations contained sweeping provisions criminalising speech or conduct deemed prejudicial to “public order,” which could include political gatherings, protests, or public statements critical of the government. His attorneys argued that the police historically interpreted public order issues as relating to protests, political rallies, and public marches.

That, he said, raised serious concerns about how those regulations could be applied, particularly in an election year, where political speech and demonstrations are expected to be vibrant and, at times, contentious.

One of the central issues raised in Persad’s claim was the risk of abuse owing to the vague language in the regulations.

Commenting on the State’s decision, Taklalsingh said, “The use of ‘public order’ in the regulations threatened free speech which is particularly important in an election year.

“The rule has prevailed in my respectful view and the concession is welcomed by our client.”

On January 16, the Government revoked regulation 11 which imposed a gun amnesty. The Office of the Attorney General and Ministry of Legal Affairs said the Cabinet agreed to amend the regulations by deleting regulation 11.

"Cabinet was advised that in the fast-evolving circumstances of the December 29/30, 2024, regulation 11 had been lifted from the previous state of emergency precedents in 2011 and 1990.”

The revocation of regulation 11 came after threat of legal action by attorney Dayadai Harripaul. Harripaul’s attorney Gerald Ramdeen had issued a pre-action protocol letter on January 6, challenging Regulation 11, which provided immunity from prosecution for individuals surrendering firearms, ammunition or explosives during a prescribed amnesty period.