Govt's COVID-19 response ignores constitution, says Barnett

Govt's COVID-19 response ignores constitution, says Barnett

Friday, March 27, 2020

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THE Independent Jamaica Council for Human Rights (IJCHR) has questioned whether the Government has acted within the law in its response to the COVID-19 pandemic.

According to IJCHR lead and constitutional attorney Dr Lloyd Barnett, the Government has “ignored” steps outlined in the Charter of Rights on how to safeguard individual rights while responding to a public health emergency.

“The Government can start with a declaration, which states that there is an emergency period of 14 days, and then go to Parliament and extend it for upwards of three months at a time. And each of those extensions require two-thirds majority of both houses of Parliament,” he told the Jamaica Observer yesterday. “That has been ignored, and they have just made regulations under statute. Nothing is wrong with… having statutory provisions, but… every statutory provision is subject to the constitution.”

The IJCHR points specifically to already-implemented and pending Government restrictions on the fundamental rights of the individual to freedom of the person, freedom of movement and freedom of association, saying some of these measures “are of dubious constitutional validity”.

According to Barnett, this is cause for concern as it takes the country down a slippery slope.

“I think it's a big deal because you ignore the constitution. And that's a big deal… There can't be any bigger deal,” he told the Observer. “Then you'll get an excuse for doing it in less credible situations. We must be clear on our constitutional restrictions.”

The full IJCHR statement of March 25 is below.

COVID-19 and the constitution

“The COVID-19 pandemic poses a serious threat to our lives and livelihood. It has endangered our fundamental rights to life and good health. The Government has been making a speedy and comprehensive response and this is commendable. Yet it is in times of crises, when we are concentrated on confronting dangers, that the need to ensure that we do not circumvent our constitutional protection of human rights is at the highest.

At press conferences, the most honourable prime minister, the honourable minister of health and wellness and the hon attorney-general have referred to the Public Health Act, the Quarantine Act and the Disaster Risk Management Act as the sources of the powers that they have invoked to implement the remedial measures implemented or contemplated. The Independent Jamaica Council for Human Rights has great doubts as to whether these statutory provisions provide the legal basis for all the actions taken or promised.

Most importantly, we are concerned that the provisions of the constitution, which specifically and directly deal with emergencies of this type, have seemingly been ignored.

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 the outbreak of pestilence or infectious diseases. Such a period of public emergency may be established by a proclamation of the governor general, which may remain in force for 14 days but may be extended by a resolution passed by an absolute two-thirds majority in both houses of Parliament.

During such constitutionally established periods of emergency, the fundamental rights of persons to freedom of the person, freedom of movement and liberty may be abridged or restricted in accordance with appropriate laws.

The charter gives further rights of access to a special tribunal in cases of detention and to the court for abuse of these powers. IJCHR considers the ignoring of these provisions to be of dubious validity at the least.

The measures implemented and announced involve restrictions on the fundamental rights of the individual to freedom of the person, freedom of movement and freedom of association. The charter permits restrictions to be imposed on these freedoms during a period of emergency by laws which are reasonably justifiable for the purpose of dealing with the situation that exists.

There is a general principle that where the constitution lays down and defines the process that should be adopted in dealing with a particular type of situation, it is not permissible to avoid the constitutional provisions and apply a different system. It is also important to take into account that the constitutional process involves an important oversight and authorisation vote by Parliament, in that a special resolution of both houses is needed to prolong the emergency measures. It, therefore, follows that some of the measures taken or being contemplated by the Government are of dubious constitutional validity.

IJCHR recognises that our experience of emergency provisions established by Proclamations and Parliamentary resolutions in the past has made the term controversial. This, however, cannot be a proper excuse for ignoring the clear provisions of the constitution and thereby nullifying the safeguards it provides.”

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