I was consulted indirectly by one of the parents whose 16-year-old daughter was the subject of a strip search by the police at her school during school hours, apparently because another student alleged that a sizeable sum of money had been stolen from her.
Thank you, Senator Dana Seetahal SC (and what an impressive contribution you are making in the Senate) for setting out for us the conditions under which the police are permitted to strip search a citizen. As I understand it, this is permitted only when a police officer has reasonable grounds to suspect that the particular individual to be strip-searched is involved in a crime, is concealing evidence or has a weapon.
Almost by definition therefore, a blanket strip-search of a group of students, reportedly comprising of 30 or more, without reference to whether suspicion has fallen on a particular individual is wrong. Not surprisingly, but sadly, it is reported that the majority of parents are too cowed to demand redress. I understand well that we live in a society of constant victimisation, but there are times when the issue is important enough that resistance to erosion of fundamental rights becomes a priority.
In last week’s column, entirely through my own fault, there was a significant typographical error, although the context would not have left anyone in doubt that I do not, I repeat not, share the belief that the Uff Commission if free to proceed. The Commission is stayed unless it gives 28 days notice and once that notice is given, it is predictable that every effort will be made to re-impose a further stay.
So we have another irony. Children at a sensitive stage of their development are being strip-searched and there was a time when we put emphasis on the privacy of young women, the violation of which would, in the eyes of many compound, the mischief of strip-searching young women. By contrast, an individual state enterprise, of whose operations the vast majority of the public is suspicious, is being protected from the search of a Commission of Enquiry; and it is not even a strip-search because the commercial equivalent of a strip-search is a forensic audit, which has not been ordered.
The parents of the strip-searched girls are not being over sensitive. The author of one textbook in my library says the following in relation to bodily examination: ’A personal search is a serious infringement of liberty and privacy. Even a quick ’frisk’ of a suspect can be undignified, and a more extensive examination can be deeply embarrassing and upsetting, particularly where any undressing or the taking of body samples is involved. The way in which the procedures are carried out, the attitude of the officers, the degree of privacy allowed to the suspect, and the suspect’s ethnic customs regarding physical contact all affect the impression made on him.’
The author continues: ’It is important to remember that the best police practice avoids, whenever possible, conducting searches in public, unnecessary frisking and all unnecessarily intimate contact. Most policemen recognise that excessive zeal in conducting personal searches is seen from the other side as insensitive bullying, and leads to loss of co-operation and loss of support for the police. This lesson was forcefully expressed by Lord Scarman in his Report on the Disorders in Brixton.’
Distinguished jurists such as Lords Scarman and Diplock and Mr. Justice William Douglas of the United States Supreme Court have always emphasised that it is the observance of due process that marks out the difference between the rule of law and rule by whim and fancy. Not surprisingly, the highest legal authorities have considered the needs of so-called governmental efficiency and I would like to share another dictum, appropriate to current controversies.
In a case in the United States Supreme Court in 1972, there is the following dictum of Mr. Justice Byron White: ’The establishment of prompt efficacious procedures to achieve legitimate state ends is proper state interest worthy of cognizance in constitutional adjudication. But the Constitution recognises higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterise praiseworthy government officials no less, and perhaps more, than mediocre ones.’
Teenagers at school in the trusted care of their teachers, without prior reference to their parents or to established legal norms, have their privacy violated, and the Education Ministry trivialises this violation as a ’mis-step’. By contrast the Government shows concern about the so-called unfair treatment of a government directed entity spending vast sums of our money. What about justice for the strip-searched children? Who will soothe the fear stimulated in other children by this latest gross abuse of individual rights?
