Editorial | Constitutional questions re COVID-19 response

Among the most difficult tests of a leader’s commitment to the deeper principles of democracy is his willingness to adhere to constitutional order rather than opt for expedience, or the easy way out, even in times of crises.

That is why this newspaper takes seriously the concerns raised by the Independent Jamaica Council for Human Rights (IJCHR) and its president, Lloyd Barnett, about the constitutionality of some of the actions taken by the Holness administration in response to the COVID-19 pandemic. We look forward to the Government’s engagement of the issues raised.

Neither the IJCHR nor this newspaper, or other persons who have been uneasy about the legal route the Government took to its destination, are against the logic of the actions so far taken by the authorities to slow the spread of the coronavirus. Indeed, in his statement last week, Dr Barnett acknowledged the threat posed by the disease to the “lives and livelihood” of Jamaicans. He commended the Government for its speed and comprehensive response to the threat.

The administration has closed schools; advised businesses, where possible, to allow their staff to work from home; quarantined two communities where persons with COVID-19 interacted with residents; banned assemblies of more than 10 persons; and told people 75 and older to stay in their homes, but allowed out only once per day for “the necessities of life”.

While these actions are in line with international best practices to slow the transmission of the disease, they, at least in Jamaica’s case, infringe on constitutionally guaranteed rights such as freedom of association and freedom of movement.

Prime Minister Andrew Holness and the Government’s legal adviser, Attorney General Marlene Malahoo Forte, say they acted in accordance with powers under the Disaster Risk Management Act, the Public Health Act, and the Quarantine Act.

Indeed, the Disaster Risk Management Act allows the prime minister “to declare the whole, or any part of Jamaica, to be a disaster or threatened area” and to direct the enforcement of measures for “removing or otherwise guarding against such a condition or hazard and the probably consequences thereof’”.

Dr Barnett, and the IJCR, however, doubt that the cited laws provide the constitutional basis for infringing rights in the manner as has been done, arguing that there are provisions in the Constitution that “specifically and directly deal with emergencies of this type”.

Said the IJCHR: “The Charter of Rights provides for the establishment of a period of public emergency where a situation of public disaster has arisen as a result of outbreak of pestilence or infectious diseases. Such a period of public emergency may be established by proclamation by the governor general, which may remain for 14 days, but may be extended by a resolution passed by an absolute two-thirds majority in both houses of Parliament.”

TOO IMPORTANT

Section 13 (9) of the Constitution, under the Charter of Rights, allows for the breach of certain declared freedoms in circumstances “that are reasonably justifiable for the purpose of dealing with situations that exist during a period of public emergency or public disaster”.

At Section 20 (1), a public disaster is defined as “any period during which there is in force a proclamation by the governor general that a public disaster exists”. In issuing the proclamation, the governor general, at Section 20 (2), has to satisfy himself “that a period of public disaster has arisen as a result of the occurrence of any earthquake, hurricane, flood, fire, outbreak of pestilence, outbreak of infectious disease, or other calamity, whether similar to the foregoing or not”. On the face of it, COVID1-19 falls within the realm of an infectious disease that would induce the governor general to act.

Perhaps the administration has an interpretation of the Constitution, and the laws under which it acted, other than Dr Barnett’s supposition that controversies around the past use of states of public emergency made the Government wary of employing that measure in this circumstance.

Given Dr Barnett’s eminence as a constitutional scholar, we await the administration’s response to his observations. For, while the COVID-19 crisis is too serious not to be recognised as a public disaster and beyond the realm of partisan bickering, constitutional norms are too important to be dealt with on a whim.