Detainee challenges SoE tribunal over access to legal counsel

JENSEN LA VENDE

Se­nior Re­porter

[email protected]

A 20-year-old man de­tained un­der a Pre­ven­tive De­ten­tion Or­der (PDO) is threat­en­ing ju­di­cial re­view and con­sti­tu­tion­al pro­ceed­ings against the State of Emer­gency (SoE) Re­view Tri­bunal and the At­tor­ney Gen­er­al, claim­ing he has been de­nied ac­cess to le­gal rep­re­sen­ta­tion de­spite pro­vi­sions in the Emer­gency Pow­ers Reg­u­la­tions (EPR).

In a pre-ac­tion pro­to­col let­ter dat­ed Au­gust 14, at­tor­ney Keron Ramkhal­whan, act­ing for de­tainee Ja­maalee “Maly” Wil­son, ar­gued that the re­view tri­bunal un­law­ful­ly failed to con­sid­er ex­er­cis­ing its pow­er to ap­point le­gal coun­sel for de­tainees and in­stead di­rect­ed Wil­son’s fam­i­ly to seek as­sis­tance from the Le­gal Aid and Ad­vi­so­ry Au­thor­i­ty.

Wil­son has been de­tained at the East­ern Cor­rec­tion­al and Re­ha­bil­i­ta­tion Cen­tre (ECRC) since a PDO was is­sued against him on Ju­ly 18.

Ac­cord­ing to his PDO, Wil­son was “cred­i­bly iden­ti­fied as an ac­tive mem­ber of an In­for­mal Or­gan­ised Crime Group (‘ICG’).” It added that the ICG has ac­cess to a cache of firearms and am­mu­ni­tion and is en­gaged in home in­va­sions, shoot­ings, wound­ings, as­saults and wit­ness in­tim­i­da­tion. Wil­son was de­scribed as a se­nior mem­ber and op­er­a­tive for the ICG who, along with oth­ers, took part in armed rob­bery in a pub­lic space.

On Ju­ly 29, near­ly two weeks af­ter he was de­tained, Wil­son’s moth­er, Abena Wil­son, wrote to the tri­bunal seek­ing an ur­gent re­view of his de­ten­tion, in­di­cat­ing the fam­i­ly could not af­ford a pri­vate at­tor­ney and wished to ac­cess le­gal aid.

Ac­cord­ing to the pre-ac­tion let­ter, tri­bunal sec­re­tary Navara­nee Ali-Dookram re­spond­ed on Ju­ly 30, ad­vis­ing that the fam­i­ly should first ap­proach the Le­gal Aid and Ad­vi­so­ry Au­thor­i­ty for as­sis­tance.

How­ev­er, Ramkhal­whan con­tend­ed that the tri­bunal it­self has the statu­to­ry pow­er un­der para­graph 7(5) of the Sched­ule to the Emer­gency Pow­ers Reg­u­la­tions 2026 to as­sign le­gal rep­re­sen­ta­tion to de­tainees who lack the means to ob­tain coun­sel. He ar­gued the tri­bunal failed to con­sid­er that pow­er, in­vite an ap­pli­ca­tion, or pro­vide rea­sons for not ex­er­cis­ing it.

The at­tor­ney fur­ther ar­gued that de­tainees are be­ing de­prived of a mean­ing­ful op­por­tu­ni­ty to chal­lenge their de­ten­tion be­cause no clear pro­ce­dure ex­ists for ob­tain­ing state-fund­ed le­gal rep­re­sen­ta­tion.

“An en­tire class of per­sons has been de­prived of lib­er­ty by ex­ec­u­tive or­der, told that they may present their case be­fore the tri­bunal in per­son or by a le­gal rep­re­sen­ta­tive, and then left with­out any means, mech­a­nism or in­for­ma­tion by which a le­gal rep­re­sen­ta­tive might ac­tu­al­ly be ob­tained. We in­vite the tri­bunal to state, in writ­ing and in an­swer to this let­ter, what pro­ce­dure (if any) has been es­tab­lished for the mak­ing and de­ter­mi­na­tion of ap­pli­ca­tions un­der para­graph 7(5) of the Sched­ule, and how de­tainees are in­formed of it.”

The let­ter claimed the prob­lem ex­tends be­yond Wil­son’s case and af­fects mul­ti­ple de­tainees held un­der PDOs.

“It is not the prod­uct of an over­sight in the Po­ten­tial Ap­pli­cant’s case; it is the con­di­tion in which every de­tainee in this coun­try present­ly finds him­self. It is ac­cord­ing­ly the Po­ten­tial Ap­pli­cant’s hope that the de­ter­mi­na­tion of this chal­lenge will se­cure, for all per­sons de­tained un­der the EPR now and here­after, a re­al and work­able means of test­ing the law­ful­ness of their de­ten­tion be­fore the tri­bunal which the law has con­sti­tut­ed for that very pur­pose.”

Ramkhal­whan al­so ques­tioned whether the State has pro­vid­ed fund­ing en­vis­aged un­der para­graph 7(6) of the reg­u­la­tions to pay lawyers as­signed by the tri­bunal, sug­gest­ing the le­gal aid safe­guard may have been ren­dered in­ef­fec­tive through ex­ec­u­tive in­ac­tion.

The at­tor­ney ar­gued that if that was not done, then it amounts to a breach of Wil­son’s con­sti­tu­tion­al right to the “pro­tec­tion of the law” un­der Sec­tion 4(b) of the Con­sti­tu­tion, since the on­ly mech­a­nism avail­able to a de­tainee to se­cure rep­re­sen­ta­tion be­fore the Tri­bunal has al­leged­ly not been made op­er­a­tional.

The pre-ac­tion pro­to­col let­ter calls on the SoE Re­view Tri­bunal to ap­point an at­tor­ney for Wil­son, the Le­gal Aid and Ad­vi­so­ry Au­thor­i­ty to clar­i­fy whether it will as­sist oth­er de­tainees, and asks the tri­bunal to ex­plain what pro­ce­dure ex­ists for de­tainees to ap­ply for lawyers un­der the reg­u­la­tions.

Ramkhal­whan gave both the At­tor­ney Gen­er­al and the tri­bunal one day to re­spond; fail­ing a re­sponse, Wil­son said he in­tends to file ju­di­cial re­view and con­sti­tu­tion­al pro­ceed­ings.