Political scientist and constitutional expert Professor Hamid Ghany says the Court of Appeal’s decision on Thursday to grant Dominic and Genevieve Hadeed conditional release while their Preventive Detention Orders (PDOs) remain in force raises significant questions about the separation of powers and the constitutional framework governing detention during a State of Emergency.
Speaking to TTT News following the decision, he said the Court of Appeal had not yet dealt with the substantive issues surrounding the PDOs, but had instead granted the couple relief by allowing them to leave prison and regain their liberty under strict conditions.
He described the restrictions as being similar to “transporting portions of a PDO with them to home”.
Professor Ghany noted that the case had become a “cause célèbre” during the State of Emergency, with issues surrounding the couple’s detention and the wider circumstances of the case attracting significant public attention.
He also noted the broader debate over access to legal representation and the ability of individuals with significant financial resources to challenge the State. However, he stressed that there was nothing unreasonable about the Hadeeds exercising their right to retain Senior Counsel and challenge their detention.
“It is raising a number of class considerations in the society about the extent to which, you know, if you’re able to hire four or five Senior Counsel to appear for you and you can challenge the State, the resources available are there. That is well within their rights. It’s nothing unreasonable about that. I think that the big issue is whether the issues of law that are being discussed about the Preventive Detention Orders and so on—this is a separation of powers issue. I mean, the Preventive Detention Orders reside with the executive under State of Emergency. Fortunately, we do not live in a dictatorship because there is a court system that can evaluate all that is going on.”
Professor Ghany said the Court of Appeal’s decision could have implications for other people detained under PDOs, although he cautioned that each case would have to be considered on its own facts.
“Each case would be peculiar in its own right. Some of the issues that have been raised here about family life and the absence of the children and medical issues and so on, those arguments most probably could be made elsewhere. But a lot of things are arising here, you know, the issue of the nuclear family and so on, and family life and all of that, which is prescribed in the Constitution, in the Bill of Rights section, not everyone has the same type of family life. You have, you know, different circumstances so that you can’t, you know, compare everybody on the same playing field. The human rights will be there, but the personal circumstances are different and, of course, the Preventive Detention Orders made for each of the persons who are detained all have different circumstances.”
Professor Ghany said the State could seek leave to appeal the Court of Appeal’s decision to the Judicial Committee of the Privy Council and suggested that such an appeal could be pursued on an expedited basis.
“The State does have the right to seek an appeal, just as the other side would have had the right to seek an appeal to the Privy Council on an expedited basis. So I think that seeing that this case is one that has been given the kind of fast-tracking and the kind of expedition that has been applied to hearings in this matter, it would not surprise me if the State would seek to appeal to the Privy Council. So that would give us, the apex court would give us the final determination on what the situation would be with this particular case.”
Looking ahead, Professor Ghany said the constitutionality of Preventive Detention Orders would likely come under scrutiny, which he said would be beneficial to the country.
He said the next stage would involve “fine-tuning” the constitutional issues arising from the case.