Independent senators worried about lack of safeguards in bill proper oversight

KAY-MARIE FLETCH­ER

Se­nior Re­porter

kay-marie.fletch­[email protected]

In­de­pen­dent sen­a­tors are ques­tion­ing whether the Spe­cial Op­er­a­tions Bill (SOB) leg­is­la­tion con­tains ad­e­quate safe­guards against the mis­use of its ex­tra­or­di­nary pow­ers.

In­de­pen­dent Sen­a­tors Michael Si­mon de la Bastide, An­tho­ny Vieira and Dr De­siree Mur­ray yes­ter­day raised con­cerns rang­ing from re­stric­tions on move­ment and de­ten­tion pow­ers to the ab­sence of manda­to­ry body-worn cam­eras and com­mu­ni­ty de­vel­op­ment mea­sures.

De la Bastide said he could not sup­port the bill, ar­gu­ing that it ef­fec­tive­ly places state of emer­gency-type pow­ers in the hands of the Cab­i­net with­out suf­fi­cient ju­di­cial over­sight.

Re­fer­ring to Prime Min­is­ter Kam­la Per­sad-Bisses­sar’s re­cent com­ments about au­tho­ris­ing spe­cial op­er­a­tions on­ly in Unit­ed Na­tion­al Con­gress-held con­stituen­cies, de la Bastide warned the leg­is­la­tion could be vul­ner­a­ble to po­lit­i­cal in­flu­ence.

“What is dis­turb­ing is that the Prime Min­is­ter’s state­ment lays bare the fact that the Gov­ern­ment is pre­pared to ex­er­cise its pow­er un­der this bill based on po­lit­i­cal con­sid­er­a­tions,” he said dur­ing his con­tri­bu­tion to the de­bate in the Sen­ate.

“The Prime Min­is­ter’s com­ments re­veal a mind­set that it is okay to ex­er­cise or not ex­er­cise these pow­ers pure­ly for po­lit­i­cal rea­sons or po­lit­i­cal cir­cum­stances. This mind­set I find very wor­ry­ing.”

While stress­ing he was not ac­cus­ing Gov­ern­ment of in­tend­ing to abuse the pow­ers, de la Bastide said the bill nev­er­the­less cre­at­ed the po­ten­tial for such abuse.

Vieira al­so ques­tioned the struc­ture of de­ci­sion-mak­ing un­der the leg­is­la­tion.

Al­though the Pres­i­dent would for­mal­ly de­clare a closed area, he not­ed that the Head of State acts on the ad­vice of Cab­i­net and ar­gued that a writ­ten rec­om­men­da­tion from the Com­mis­sion­er of Po­lice should be re­quired be­fore such a de­c­la­ra­tion is made.

“If this is tru­ly a po­lice-led regime as the bill says it is, then why does the bill not re­quire a writ­ten rec­om­men­da­tion from the Com­mis­sion­er of Po­lice that or­di­nary polic­ing mea­sures are in­suf­fi­cient be­fore a closed area can be de­clared?” Vieira asked.

He said such a re­quire­ment would strength­en the frame­work by en­sur­ing pro­fes­sion­al po­lice lead­er­ship first de­ter­mines op­er­a­tional ne­ces­si­ty, while the Ex­ec­u­tive, Par­lia­ment and courts con­tin­ue to ex­er­cise their re­spec­tive over­sight roles.

Vieira ac­knowl­edged that Gov­ern­ment had made sig­nif­i­cant changes to the leg­is­la­tion fol­low­ing the de­feat of the Zone of Spe­cial Op­er­a­tions (ZOSO) Bill in Jan­u­ary. How­ev­er, he said fresh con­cerns had emerged, in­clud­ing the lack of max­i­mum time lim­its for closed ar­eas, cur­fews and de­ten­tion with­out charge.

He iden­ti­fied sev­er­al im­prove­ments in the re­vised bill, in­clud­ing a two-year sun­set clause, more ob­jec­tive cri­te­ria for de­clar­ing closed ar­eas, a re­quire­ment that or­di­nary polic­ing mea­sures be deemed in­ad­e­quate be­fore spe­cial op­er­a­tions are au­tho­rised, greater po­lice lead­er­ship, ju­di­cial su­per­vi­sion of de­ten­tion, body-cam­era pro­vi­sions and re­port­ing re­quire­ments.

Still, Vieira ques­tioned whether the leg­is­la­tion im­pos­es greater re­stric­tions than nec­es­sary.

“Do the mea­sures in this bill go fur­ther than rea­son­ably nec­es­sary? Can less in­tru­sive mea­sures sub­stan­tial­ly achieve the same ob­jec­tive? And ul­ti­mate­ly, has a fair bal­ance been struck be­tween the rights of the in­di­vid­ual and the in­ter­ests of the com­mu­ni­ty?” he asked.

Among the al­ter­na­tives he sug­gest­ed were check­points, tar­get­ed re­stric­tions, lim­it­ed-hour con­trols and a pre­sump­tive right for res­i­dents to en­ter and leave af­fect­ed ar­eas, sub­ject to iden­ti­fi­ca­tion and rea­son­able se­cu­ri­ty mea­sures.

Vieira al­so called for quar­ter­ly re­ports to both Hous­es of Par­lia­ment so leg­is­la­tors could as­sess spe­cial op­er­a­tions while they are un­der­way rather than months af­ter the fact.

Re­ject­ing the no­tion that con­sti­tu­tion­al safe­guards are in­com­pat­i­ble with ef­fec­tive polic­ing, he said the coun­try should not be forced to choose be­tween civ­il lib­er­ties and pub­lic safe­ty.

“The chal­lenge be­fore us is not whether we are for the po­lice or for civ­il lib­er­ties. That is a false choice,” he said. “The ques­tion is whether we can de­sign a sys­tem that gives the po­lice the pow­ers they gen­uine­ly need while plac­ing clear bound­aries around those pow­ers.”

Mur­ray sim­i­lar­ly ac­knowl­edged that many rec­om­men­da­tions made dur­ing the Jan­u­ary ZOSO Bill ap­peared to have been in­cor­po­rat­ed in­to the re­vised leg­is­la­tion.

How­ev­er, she iden­ti­fied sig­nif­i­cant re­main­ing gaps, in­clud­ing the ab­sence of a manda­to­ry re­quire­ment for body-worn cam­eras, the re­moval of a com­mu­ni­ty de­vel­op­ment com­po­nent and the lack of a con­sti­tu­tion­al over­ride clause.

“Body-worn cam­eras are not manda­to­ry but should be. A com­mu­ni­ty de­vel­op­ment com­po­nent is not in­clud­ed, but should be. And three, a con­sti­tu­tion­al over­ride clause is not in­clud­ed, but should be,” Mur­ray said.

De­bate on the leg­is­la­tion con­tin­ued up to press time. The bill re­quires on­ly a sim­ple ma­jor­i­ty in the Sen­ate for pas­sage.