Vieira: Govt must detail need for any SoE extension

Gail Alexan­der

Se­nior Po­lit­i­cal Re­porter

As a mat­ter of con­sti­tu­tion­al prin­ci­ple, the bur­den rests on the State to jus­ti­fy why it must con­tin­ue a State of Emer­gency (SoE), since an SoE is not in­tend­ed to be­come the nor­mal frame­work of gov­er­nance, In­de­pen­dent Sen­a­tor An­tho­ny Vieira says.

Vieira did so in a state­ment last Sat­ur­day, hours be­fore the Gov­ern­ment an­nounced its in­ten­tion to ex­tend the SoE.

Vieira said, “A State of Emer­gency is an ex­cep­tion­al con­sti­tu­tion­al mech­a­nism; it’s not in­tend­ed to be­come the nor­mal frame­work of gov­er­nance. In any con­sti­tu­tion­al democ­ra­cy found­ed on the rule of law, the start­ing point is that cit­i­zens en­joy their rights and free­doms. Sus­pen­sion or lim­i­ta­tion of those rights is the ex­cep­tion and there­fore re­quires con­tin­u­ing jus­ti­fi­ca­tion.

“To be clear, I’m not nec­es­sar­i­ly ad­vo­cat­ing for the ter­mi­na­tion of the SoE. The Gov­ern­ment, the Po­lice Ser­vice and the na­tion­al se­cu­ri­ty agen­cies may pos­sess in­tel­li­gence and op­er­a­tional in­for­ma­tion that’s not avail­able to the pub­lic or to Par­lia­men­tar­i­ans. But if the Gov­ern­ment seeks to con­tin­ue the SoE, it should place be­fore the coun­try a clear, ev­i­dence-based case demon­strat­ing why the ex­tra­or­di­nary mea­sures re­main nec­es­sary, pro­por­tion­ate and ef­fec­tive.

“In a de­mo­c­ra­t­ic so­ci­ety gov­erned by the rule of law, re­stric­tions on con­sti­tu­tion­al rights and free­doms should not rest on as­sump­tion alone; they should be jus­ti­fied by facts, da­ta, and mea­sur­able out­comes.”

Vieira added, “My po­si­tion has al­ways been guid­ed by what is nec­es­sary, ap­pro­pri­ate, and in the peo­ple’s best in­ter­ests. Where ex­cep­tion­al mea­sures are re­quired to pro­tect pub­lic safe­ty, they should be sup­port­ed. Equal­ly, where ex­cep­tion­al pow­ers are con­tin­ued, the pub­lic is en­ti­tled to a full and per­sua­sive ex­pla­na­tion as to why they re­main nec­es­sary.

“The more se­vere the in­tru­sion in­to lib­er­ty, the stronger the ev­i­dence re­quired. If free­dom of as­sem­bly, protest, move­ment, ex­pres­sion or pri­va­cy are be­ing re­strict­ed, then the Gov­ern­ment should be pre­pared to show em­pir­i­cal ev­i­dence that the re­stric­tions are pro­duc­ing mean­ing­ful ben­e­fits.”

Say­ing emer­gency pow­ers should nev­er be­come per­ma­nent, he said, “One of the old­est con­sti­tu­tion­al con­cerns is that emer­gency pow­ers have a ten­den­cy to be­come nor­malised. The dan­ger isn’t nec­es­sar­i­ly bad faith, but a ten­den­cy on the part of gov­ern­ments be­com­ing ac­cus­tomed to pow­ers that make ad­min­is­tra­tion eas­i­er.”

Vieira en­cour­aged the Gov­ern­ment to more ful­ly ar­tic­u­late its case so that Par­lia­ment and the pub­lic can make an in­formed as­sess­ment of the way for­ward.

“In my re­spect­ful opin­ion, each ex­ten­sion of an emer­gency should re­quire a more com­pelling jus­ti­fi­ca­tion than the pre­vi­ous one. At the be­gin­ning of an emer­gency, Gov­ern­ment may re­ly heav­i­ly on in­tel­li­gence as­sess­ments and ur­gent cir­cum­stances—Gov­ern­ment is giv­en the ben­e­fit of the doubt and a cer­tain lat­i­tude may be al­lowed,” he added.

“How­ev­er, a year lat­er, Par­lia­ment and cit­i­zens should ex­pect re­al and up-to-date da­ta; as­cer­tain­able out­comes; in­de­pen­dent as­sess­ments; and clear bench­marks. The longer the SoE con­tin­ues, the less per­sua­sive gen­er­alised as­ser­tions be­come.”

Vieira said rights are test­ed dur­ing dif­fi­cult times.

“Few peo­ple ob­ject to free­dom of speech when every­one agrees, and few peo­ple ob­ject to free­dom of as­sem­bly when there’s no con­tro­ver­sy. The true test comes when gov­ern­ments face pres­sure, fear, dis­or­der or crit­i­cism. Rights are de­signed pre­cise­ly for those mo­ments,” he said.

“That doesn’t mean pub­lic safe­ty is unim­por­tant. Rather, it means that it is in­cum­bent on the Gov­ern­ment to con­tin­u­al­ly jus­ti­fy why lim­i­ta­tions on lib­er­ty re­main nec­es­sary.”

Vieira said if Gov­ern­ment is re­new­ing the SoE, Par­lia­ment is en­ti­tled to ask:

a) ↓How many mur­ders oc­curred be­fore and af­ter the emer­gency?

b) How many shoot­ings?

c) How many kid­nap­pings?

d) How many gang-re­lat­ed of­fences?

e) How many firearms were re­cov­ered?

f) How many pros­e­cu­tions re­sult­ed?

g) How many con­vic­tions re­sult­ed?

h) ↓How many crim­i­nal en­ter­pris­es were dis­rupt­ed?

i) ↓What in­tel­li­gence demon­strates that the threat re­mains ex­cep­tion­al?

j) Which pow­ers have ac­tu­al­ly been used?

k) How of­ten, and with what out­comes?