Contributed by the Human Rights Commission
The police do not know the law, but it is not their fault. By law, the police are a disciplined organization. Like the army and Coast Guards they must obey instructions. Many times, the instructions are not lawful. Even though the law is that police, army, Coast Guards and everyone has a duty not to obey an illegal order or instruction, policemen and women know they will be punished by their supervisors for disobeying instruction, whether it is lawful or unlawful.
Police officers are not to profile citizens of Belize, but they do it anyway. Police officers are not to detain anyone, arrest anyone and keep them locked up at police stations for any length of time without bringing charges. They do it all the time.
Police officers are not to search any person if they do not have reasonable grounds for doing so. Yet, they routinely stop and search persons anyway. There is a long, long list of things police are not to do. But they do it anyway. There is poor supervision of the police and practically no accountability for their wrongs, unless it is a sensational matter caught on video and posted on Facebook or shown on local media.
We will focus on what are our Constitutional Rights and make reference to a few important court judgements to deal with our right not to be unlawfully stopped and searched.
The Constitution of Belize is the Supreme law of our nation. It is the Constitution which creates the National Assembly and gives certain authority to the Legislature made up of the House of Representative and the Senate. The Constitution creates the post of Prime Minister, Ministers of Government and the Cabinet. The constitution creates Magistrates, Judges, the Supreme Court, Court of Appeal and Caribbean Court of Justice as our final appeal Court.
It is the Constitution which provides for Police officers, public officers, and the BDF and the Budget concerning all government monies. And it is in the Constitution which All of our Fundamental Rights and Freedoms are listed from section 3 to section 20. Section 5 of the Constitution deals with Protection of the Right to personal liberty. This is a very important right and constitution devotes four pages in dealing with our right to our liberty.
No one can deprive you of your liberty, except if they have the authority of law. For example, a Court can sentence a person to prison and that is not unlawful or a violation of your right to your liberty. Medical authorities can diagnose a person mentally ill requiring them being kept in a mental institution and that is not a violation. On medical and scientific advice, the government can curtail or restrict persons, villages, towns, and the whole country to prevent the spread of infections or contagious diseases, as is the present situation with Covid.
But in all these and the other instances authorized by the constitution at section 5 subsection (1) (a) to (f), it must be done by a law, must be reasonable and proportionate.
Police have such an important function in our democratic society operating under the Rule of law, that the constitution outlines how they are to conduct themselves when dealing with liberty. Section 5 subsection (2) states “Any person who is arrested or detained SHALL BE ENTITLED”:-
To be informed PROMPTLY and in ANY CASE NO LATER than 24 hours after such arrest or detention…. Of the reasons for his arrest.
To communicate WITHOUT DELAY and in private with a lawyer of his choice. Minors must be allowed to also contact a parent or guardian.
Immediately on a person being arrest or detained, he/she MUST be told of his RIGHTS under (a) and (b) above.
Apply to Court to determine if his detention is valid.
Section 5 subsection (3) lays down that – “Any person who is arrested or detained”:
For the purpose of bringing him before a Court in carrying out an Order of a Court or,
Upon reasonable suspicion of his having committed or being about to commit a criminal offence.
And who is NOT RELEASED, SHALL be brought before a Court WITHOUT UNDUE DELAY and IN ANY CASE NOT LATER THAN 48 hours after being arrested or detained.
We have highlighted and underlined several of the above words which need to be explained.
Look at Section 5 subsection (2) above. If a person is arrested or merely detained, he/she is automatically ENTITLED to FIVE of his/her RIGHTS as detailed in a, b, c, d, e, above.
Under (c) the police (or any officials like BDF, Coast Guards, tourist police, customs, immigration) MUST TELL YOU IMMEDIATELY of your RIGHTS under (a) and (b).
What is missing and what must be included if and when the Prime Minister gets his Constitutional Reform committee working is another Section to say that upon arrest or detention, a person must be CAUTIONED that he or she has a RIGHT to remain silent. And if he or she wishes to say anything, it must be put in writing and the person must be told that it may be used against him or her if the matter goes to Court. This RIGHT to remain silent is already the law in Belize as it is in the U.K, USA, commonwealth countries in Africa, India, Canada, Nigeria, Mexico, Jamaica and over a hundred other democratic countries.
The Human Rights Commission of Belize and the Association of Defense Attorneys in a recent meeting with Minister Kareem Musa proposed that on the Form which must be given by police to a person being arrested or detained, the CAUTION that such a person has a right to remain silent must be included.
Look at subsection (3) above and specifically at (b). Notice it starts off with the words UPON REASONABLE SUSPICION. Poorly trained police have over the years violated the constitutional rights of citizens by detaining and locking them up without REASONABLE SUSPICION. Sometimes, they detain and lock-up persons out of “bad mind” or sheer malice. To do so is unlawful and can result in lawsuits.
Look again at the other words in subsection (3). Any person arrested or detained…“and who is NOT RELEASED,” SHALL BE BROUGHT before a Court WITHOUT UNDUE DELAY and ANY CASE NOT LATER THAN 48 HOURS.
This means if the police are not going to charge a person, he/she must be released. Not released at the earliest. It means if the person is going to be charged and taken to Court, that process should never take more than 48 hours. The words of the constitution are: who is not released SHALL be brought before a court without DELAY and in any case NOT LATER than 48 hours. There is nothing in the section that says police can hold a person for up to 48 hours. The 48 hours has to do with when a person is going to be charged and taken to Court.
This misunderstanding of the law has been going on for years and even though there are now trained lawyers in the Police department, this unconstitutional violation continues. The police have absolutely no authority to detain a person at any station for any period of time and then release them. That is a violation of their constitutional right to their liberty.
Because this is not taught to police officers, they routinely detain and unlawfully keep persons at police stations then release them without charge. For these violations, there have been cases taken to the Supreme Court and the police have been ordered to pay.
Next week we will continue our review of section 5 of the constitution which also contains provision for bail, for compensation when police violate the rights to liberty.