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Wednesday, June 3, 2020
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The disparity in application of the law

It is indeed a rather frightening phenomenon that needs to be recorded in history, how the State of Emergency has shown more blatantly the disparity of the application of law and the selective interpretation of the law to accommodate the select few.

Jules vs Arthur
There has not been a more flagrant example of blatant disparity in the application of the law than that of the case of Jules Vasquez, news director from 7News, and Arthur Saldivar, the attorney/politician of Belmopan. To appreciate the flagrant disregard of equity, one needs to know the sequence of events and the pronouncement by the Commissioner of Police Chester Williams.

Both Jules and Arthur were in their line of duty when they both reportedly were without masks. One came out of his vehicle without a mask and was carrying out his duties without a mask for a period of time, until a police officer told him about it, per news reports.

The other was wearing a mask and momentarily removed it at the police station, it is said, and before he could put it back on, was arrested and charged on the spot.

In the case of Saldivar, it is his word against the police officer who arrested him, regarding whether or not indeed he was without a mask.

In the case of Jules, there is undisputed video footage that shows him without a mask and that absolutely discredits the narrative the Compol peddled in order to justify the disparity in treatment. Per Compol Chester Williams, Jules alighted his work vehicle and stepped out without a mask on his face as is required by law, and was told by the officer about it. Here are his direct words:

“Upon seeing the video I questioned the officers who were working out there to ascertain from them what had happened. From the explanation I got was that the officers were busy dealing with Raymond Rivers, who was behaving a way and they did not see Jules until a little while after. I spoke particularly to the officer who was in charge, Superintendent Chan, and Chan said to me that upon seeing Jules Vasquez without the mask, he approached Jules Vasquez and said to him that he was not wearing a mask. Jules Vasquez apologized to him, saying that he just ran out of the vehicle forgetting that he did not have on the mask, and quickly, Jules went, got the mask from the vehicle and put it on. If the officer accepts Jules Vasquez’s explanation, and exercised his discretion not to charge Jules Vasquez based on his explanation, then I personally don’t see anything wrong with that.”

The problem with the SOE Regulations is that it only creates offences of strict liability, and as such there is no provision in it for the magistrate to exercise any discretion when passing a sentence! SI 72 of 2020 under which Jules committed his violation states:

“Reg. 10: For the purposes of preventing, controlling, containing and suppressing the spread of the infectious disease COVID-19, (a) every person shall practice social distancing; (b) every person in a public place, public space, or public office or building shall wear a face mask or other face (mouth) covering.”

The use of the word “shall” makes it mandatory and does not provide for any discretion regarding whether or not there should be compliance. It nonetheless does provide room for exercising discretion on whether to arrest or not, but such discretion on principles of law is not unfettered. However, to appreciate the full force of the law, one needs to read the penalty section at Reg. 25 of SI 72 of 2020, which states:

“ 25.–(1) Every person who contravenes any of the provisions of these Regulations or incites or attempts to incite any other person to contravene any of these Regulations commits an offence and is liable on summary conviction to a fine of five thousand dollars ($5,000.00) or to imprisonment for two (2) years.

“(2) A person convicted of a second or subsequent offence under these Regulations is liable to imprisonment for a period of two years.

“(3) It shall be the duty of every member of the security services to enforce, using force if necessary, compliance with these Regulations and with any order, rules, instruction or condition lawfully made, given or imposed by any officer or other person under the authority of this Regulation, and for such purpose any member of the security forces may enter any premises, board any ship or aircraft, without a warrant.

“(4) Any member of the security forces may arrest, without a warrant, any person whom he has reasonable cause to believe to have committed any offence against these Regulations or any order, rules, instruction or condition lawfully made, given or imposed by any officer or other person under the authority of this Regulation.”

Reg. 25(3) mandates a police officer to enforce the provisions of SI 72 to the point that he can use force. It did not say he is not to enforce it. However, it does give room for the officer to use discretion to determine when to arrest without a warrant if he, in his judgement, finds that an offence under the SI 72 has been committed by any individual. In this case, the officer accepted Jules’ excuse that he just forgot to put on his mask, but the officer failed to consider for how long Jules stayed with his mask off and the circumstances of him being out there.

Consider this: while police are arresting protesters for social gatherings under the SOE, they freed Jules for not wearing a mask at that same time. Duplicitous, to say the least! From the videos circulating, it was throughout the coverage of the protest and arrest of the protesters that Jules was without a mask. As the most prominent picture shows, he is bare-faced, while police have some protester in the background well-pinned down.

Video footage of the coverage of the news story of protesters being arrested outside Channel 5 clearly shows Jules, in action, recording the events of the arrest, and it could not be further from the truth that he subsequently put on his mask during the course of the events. Had that been the case, then it would mean that during the next half hour to one hour that there was news coverage of the protest, there would have been some video footage or photographs that captured Jules with a mask on, since Chester said that his officer reported that Jules was warned and he complied.

The physical evidence sadly does not align with the narrative, and causes a loss of credibility and confidence in the Commissioner of Police, who seems willing to make an excuse and justify the unequal application of the law to two gentlemen, both professionals doing their jobs. Now let’s keep in mind that in both incidents, Chester was not present in person, and what he narrates is second- hand, and he has not produced any report from his officers recording the events as he narrates them.

Attorney Arthur Saldivar charged
Now, turning to the other incident, where attorney Arthur Saldivar was at the Belmopan police station seeking to provide legal representation to his client, Nigel Petillo, we see a far different approach and, surely, there was no application of any discretion. Clearly, the Compol is not even using his discretion to ensure that there is equal application of the law.
Per the various versions of what happened in the Saldivar case, one thing for sure is that he is accused of taking off his mask at some point; however, there is no video evidence or photo of this to collaborate this story, unlike the Jules case.

Nonetheless, it is not a case where he arrived at the police station without a mask, nor that he was without a mask for a prolonged period. I do not know if Saldivar admits or denies taking off his mask at some point at the police station or upon his arrival there, but I was able to confirm that he did have a mask and had been wearing it, but what can be disputed is at what point did he take it off briefly and why he took it off, and whether he was warned to just put it back on.

However, his circumstances are particularly aggravating and a cause for concern for me as an activist and an attorney, and this concern extends beyond the mask issue. According to the charge sheets, Saldivar, who went to the police station to ensure the proper treatment of his client, Nigel Petillo, and to try and secure his release from police custody, was also charged with being out in public outside curfew hours without a reasonable cause. Wow, wow, wow! Hold up there for a minute…. Being at the police station to secure the constitutional right of a client is more than a reasonable cause. Further, my opinion is that the State of Emergency Regulations could not ever take away a person’s constitutional right to an attorney upon arrest, and it does not matter what time of the day it is.

In my view, right to legal representation does not have to be listed as an essential service or purpose, because it is beyond that — it is an inalienable right, and not even a state of emergency can deny you such a right. When arrested, Petillo had to be read his constitutional rights, which included being told that he has the right “to communicate without delay and in private with a legal practitioner of your choice and to have adequate opportunity to give your attorney legal instructions…” [Rule 3.1.3 Guidelines for Interviewing and Treatment of Persons in Police Detention 2016] and that statement does not specify the time of the day when a person has the right to speak with their attorney; rather it says, “WITHOUT DELAY”!.

Clearly, this is one that can be the basis for a challenge in the courts, and every attorney should be vested in this, since it is a direct attack on the rights of every citizen and the role of an attorney. I opine that, under a state of emergency, because of the powers conferred on the state, especially the police, and the ability to create a police state by giving excessive and coercive powers to the police, it is all the more reason why the right to legal representation and access to an attorney CANNOT ever be suspended. It cannot be that when the rights of citizens are most vulnerable, that that is when the least protection will be afforded to the citizen. On the contrary, that is when we remain most vigilant and ready to act.

Equal before the law
My people, while as an attorney I knew I had to give up my right to movement and accept some limitations on my liberty, in the interest of public health, I was also aware that it was not ALL my constitutional rights that were and could be suspended. For example, even where the authorities want to charge you for breach of the SOE regulations, they must still allow due process of the law, and it is a court of competent jurisdiction that determines if you are guilty or not… NOT the police!

In the saga of Jules v Arthur, it is clear that the application of discretion carries its own bias, and anyone following the political and social and public developments can clearly conclude there is bias. I say there is bias, because one is the favored son of a staunch UDP elite, Nestor Vasquez, who holds the post of chairman of BTL, and is seen by many to be a pundit for the UDP whose television station, Channel 7, panders to the UDP and pushes their agenda, sometimes without shame. Their spin on news and editorializing of news stories to favour the party in power cannot be missed by the dumbest of the dumbest. Ironically, some 25 years ago, I was the founding editor and pioneer of what is today 7News and I was also, I can proudly say, a media trailblazer, who worked to have an aggressive and fiercely independent media, and I am disappointed at the political pandering the station I started has stooped to and how it is a political, not independent, station.

Then who is Arthur? Well, he is despised by the establishment, and is a known opposer to the current government, with political ambitions to dethrone the current Minister of National Security, who heads the police and is the incumbent in the very constituency that Arthur wants to run in, come next election. He is like a constant reminder to the political directorate that he will challenge them, and he has remained vocal against the government in many areas. He is a menace to this government and despite this being his second arrest in recent months, he has not slowed down, or shut up!

Thus, the situation seems to show that the role of the police, without shame, is rather politicized, and sadly their disparity in the application of the law, CANNOT be missed! Rise up, my people!

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