The Hadeeds have a serious issue to be tried. The court found their challenge to the legality of the PDOs is arguable and should be fully examined by the High Court.
The PDOs are subject to judicial review. The court held that even during a State of Emergency, Preventive Detention Orders are not beyond the supervision of the courts.
National security does not place the Executive beyond judicial scrutiny. While courts must give significant weight to national security concerns, the Executive must still demonstrate that detention orders comply with the law.
The Minister must provide sufficient factual grounds for detention. The court found it arguable that the concise reasons given in the PDOs, and the further particulars supplied to the tribunal, did not provide enough factual detail to justify preventive detention under the Emergency Powers Regulations.
The allegations alone may not satisfy the statutory requirements. The court noted that the PDOs referred to an alleged conspiracy and intelligence reports but lacked sufficient particulars showing:
facts supporting the alleged conspiracy;
facts supporting the alleged plan;
facts showing the involvement of persons beyond the Hadeeds and a family member; and
facts demonstrating that the alleged statements formed part of a conspiracy rather than personal expressions, however offensive.
The trial judge applied the wrong approach. The Court of Appeal held that Justice Frank Seepersad accepted the Minister’s assertions too readily without sufficiently examining whether the PDOs met the statutory requirements for preventive detention.
There is a serious question as to whether the PDOs comply with the law. The court said it was arguable that the detention orders lacked the necessary factual basis required by Regulation 14 and therefore may not be statutorily compliant.
Damages would not be an adequate remedy. The court found that continued loss of liberty, separation from family, reputational damage and medical concerns could amount to irreparable harm if the detention later proved unlawful.
The balance of justice favoured conditional release. The judges concluded that the risks identified by the State could be addressed through strict house arrest and other conditions rather than continued imprisonment.
The court did not rule on the truth of the allegations. The judges repeatedly stressed that they were not deciding whether the alleged assassination plot existed. Those issues remain for determination in the substantive judicial review proceedings.
