4 Apr 2015

A slippery slope

** In logic and critical thinking, a slippery slope is a logical device, but it is usually known under its fallacious form, in which a person asserts that some event must inevitably follow from another without any rational argument or demonstrable mechanism for the inevitability of the event in question. A slippery slope argument states that a relatively small first step leads to a chain of related events culminating in some significant effect, much like an object given a small push over the edge of a slope sliding all the way to the bottom.[1] The strength of such an argument depends on the warrant, i.e. whether or not one can demonstrate a process that leads to the significant effect. [http://en.wikipedia.org/wiki/Slippery_slope]

The above was taken from Wikipedia, usually cited as a ‘not reliable’ source, but which I have found does simplify explanations when compared with ‘academic sources’. Now that the explanation is over, let’s get to the meat of this post:

I have become quite alarmed at the current Attorney General’s (Gavin Nicholas) statement that “harsh measures” are needed to prevent losing Trinidad and Tobago. My alarm is fuelled by the conditions of the “Bail Bill” (Bail (Amendment) Bill 2015) on which the AG was commenting and which is apparently ‘here to stay’. The Bill proposes that persons arrested for certain offences involving the use or possession of a firearm face 120 days in prison without bail. In other words, a person so charged cannot even apply for bail within 120 days. On the surface, it may sound like a good thing to those who are fed up with 400+ murders annually.

But… my concern lies in the potential for abuse, and where the slippery slope principle stated above comes in. You see, I might be slightly cracked and paranoid, but I have good reason to be. Abuse of the judicial system on the Rock is plethoric. Aside from that though, I come back to observations, not only historic but also judicial observations of some of the brightest legal minds in the past century.

Let us revisit my previous blog “Excerpts from a speech” and look at the words of the former Lord Chief Justice of England and Wales at the 16th Commonwealth Law Conference, Hong Kong, on 9th April 2009:

The places where things have gone wrong include countries which believed that they were mature democracies, where these things did not and could not happen, but they did.  But they did.

…There was, of course, no physical intimidation, no threat to security of judicial tenure, none of the extremes of tyranny. But it is the first steps which have to be watched. The first incursion by the executive into impropriety. The first compromise by the judiciary with principle…

The problem with the phrase “eternal vigilance” is that it appears to focus on the long term. But the focus is the immediate, today,  every day. The insidious dangers are no less threatening than the obvious ones, and for the judiciary to acquiesce in the first small, even tiny, steps, may ultimately be terminal.

Note carefully those words. Now let us turn to V.D. Zorkin, President of the Constitutional Court of the Russian Federation who said:

In the 20th century there have been 2 examples of legal tragedies which were developing in parallel. One was totalitarian Soviet Communism and the other German Nazism. In the USSR… The law was identified with statutory law, and law was identified with the will (or rather dictatorship) of the proletariat. Through such logic, whatever was prescribed by the state in the form of statutory law was lawful.

Hitler followed yet a different ideological pathway, absolutely antagonistic to the communist ideology, but the result was the same. In Nazi Germany, law was the expression of the will of the German nation, and will of the German nation was incorporated in the F├╝hrer. Hence the law existed only as a body of statutory laws.

Both systems were killing millions of people, because for both the law was given and contained in the statutes.

I grant that the above are extreme examples where the rights of individuals within society were abused. My point is this: the abuse started with countries that never believe these things could happen, and with small incursions that chipped away at the rights of the individuals, with the approval of members of society who never thought that those incursions would turn against them later on. People never seem to think that a breach of the rights of even one individual, means that that breach can apply to all. It is why the judiciary so staunchly defends the rights of even the most depraved of society. It is why the Law Association of Trinidad and Tobago (LATT) together with the Criminal Bar Association has called for the repeal of this Bill, since 2013.

In chapter 7 of his most excellent book, "The Rule of Law", Tom Bingham said:

The state which savagely represses or persecutes sections of its people, cannot in my view be regarded as observing the rule of law…

The right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law" is written in section 4 (a) of the Trinidad and Tobago Constitution. These rights are further guaranteed by section 11 which permits any person to “request at any time during the period of that detention and thereafter…his case shall be reviewed by an independent and impartial tribunal established by law and presided over by a person appointed by the Chief Justice from among the persons entitled to practise in Trinidad and Tobago as barristers or solicitors.”

In reference to these particular rights, Bingham outlines what means by "due process of law":

Those cases relate to detention by court order following conviction; detention following breach of a court order; detention for the purpose of bringing a criminal suspect before a court or preventing him committing further offenses of fleeing after doing so; detention of a minor for educational purposes or to bring him before a competent authority; detention of persons of unsound mind, alcoholics or drug addicts, vagrants, and people afflicted by infectious diseases; or detention to prevent illegal entry into the country pending deportation or extradition. A person may not be detained unless his case falls within one or the other of these categories.

There are doubtless those who would wish to lock up all those suspected of terrorist and other serious offences and, in time-honoured phrase, throw away the key. But a suspect is by definition a person against whom no offence has been proved. Suspicions, even if reasonably entertained, may prove to be misplaced, as a series of tragic miscarriages of justice has demonstrated. Police officers and security officials can be wrong. It is a gross injustice to deprive of his liberty for significant periods a person who has committed no crime and does not intend to do so. No civilised country should willingly tolerate such injustices.

Lord Donaldson observed, "We have all been brought up to believe, and do believe, that the liberty of the citizen under the law is the most fundamental of all freedoms."

All this is background. What triggered my alarm was the use of the words "harsh measures" by the Attorney General, who has now approved, it seems, the first step onto the slippery slope. Keep in mind that abuse comes to and from those who least expect it.

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