Jail time unlikely for those who fail to report

Jail time unlikely for those who fail to report

Friday, April 10, 2020

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SINCE Prime Minister Andrew Holness's warning that thousands of people who have failed to report to the health ministry after arriving in the island on or after March 18 will be found and charged, there have been calls on social media for those individuals to be thrown in jail.

Up to April 7, about 1,000 individuals were still in violation of the law, according to figures from the Government.

However, in practical terms, imprisonment is unlikely, said attorney-at-law Dr Lloyd Barnett, who explained that, generally, imprisonment is not the first option for those who break the law. It is even more unlikely now, with lock-ups seen as potential hot spots for COVID-19.

“There is great concern about the ability of the penal institutions in Jamaica to maintain the separateness and the social distances which are recommended in this situation, and also to observe the provisions relating to sanitisation and so on. So it is a challenge to those institutions to conform with the high standards which are required in order to prevent the spread of the epidemic,” he told the Jamaica Observer.

“[A sentence of jail time] would be subjecting someone to a danger which far exceeds the consequences of any breaches they have committed, because you have said that they should keep in isolation, but then you have placed them in a position in which they're not in isolation.”

Failure to comply with the Disaster Risk Management Act carries a maximum fine of $1 million and/or 12 months' imprisonment.

In issuing his warning, Holness referenced section 52 of the Act, as well as the Disaster Risk Management (Enforcement Measures) (No 2) Order of 2020. The latter is one of the various documents published in the Jamaica Gazette since March 24, outlining the practical implementation of the Act.

Gazetted documents made up to April 1, have provided updates on changes such as border closures to incoming passengers; a broadening of entry dates of passengers who need to report to the health ministry; an extension of the self-quarantine period; announcement of the night-time curfew, as well as exemptions; extension of school closures until the Easter break ends; opening hours for markets, and more.

“[These enforcement measures] expand… on the Disaster Risk Management Act because [they have] more detailed provisions. It's actually the implementing provisions that are in these regulations,” said Barnett, a constitutional expert who heads the Independent Jamaica Council for Human Rights (IJCHR).

The IJCHR's summary of the Disaster Risk Management Act, one of the three acts the Government is using in its response to the COVID-19 pandemic, is below:

“The Disaster Risk Management Act... is designed to make provisions for the management and mitigation of diseases as well as the reduction of risks associated with disaster-related matters. Disaster is comprehensively defined as meaning:

“The occurrence or threat of occurrence of an event or other calamity, whether caused by an act of God or otherwise, which:

(a) results or threatens to result in loss or damage to property, damage to the environment or death, ill health or injury to persons on a scale which requires emergency intervention by the State; and

(b) may result from fire, accident, an act of terrorism, storm, hurricane, pollution, disease,

(c) earthquake, drought, flood, the widespread dislocation of the essential services, or other calamity.

“The Act provides for the establishment of an Office of Disaster Preparedness Management (ODPEM) with the object of advancing disaster preparedness and the institution of measures necessary to mitigate the effect of disasters. The ODPEM has the duty to advise the minister on measures which should be taken in relation to disaster preparedness and management.

“The Act requires the establishment of a National [Disaster] Risk Management Council (NDRMC). It is interesting to note that one of the members of this council is the leader of the Opposition. The NDRMC has the duty to advise on the national strategy for disaster management and to approve a National Disaster Response Coordination Plan submitted by the director general.

“The Act also requires the establishment of parish disaster committees with the responsibility to develop a Parish Disaster Management Plan.

“The Act provides that the prime minister may declare the whole or any part of Jamaica to be a disaster area or threatened area and direct the enforcement of measures recommended by the ODPEM. An order can only be made by the prime minister under this provision if he is satisfied:

“26(8) (a) that a disaster has occurred, is occurring or is imminent; and

(b) that extraordinary measures are required to prevent or minimise:

(i) loss of life, prejudice to the safety, or harm of the health, of persons;

(ii) destruction of, or damage to, property; or

(iii) destruction of, or damage to, any part of the environment.

“Where such a declaration has been made by the prime minister, an authorised officer, if he thinks it necessary, in the interest of public safety or public health, may, subject to the directions of the director general, make a number of far-reaching decisions and impose strict restrictions, including:

“(1) control the movement of persons, animals, or vehicles within, into, out of, or around the declared area;

(2) give directions to regulate the movement of any person, animal or vehicle within, into, out of, or around the declared area;

(3) direct the evacuation of the area;

(4) direct persons to leave any particular premises and to move out of the declared area;

(5) seal, close off, remove, dismantle, demolish or destroy a vehicle, or a building or other structure, in the declared area where such vehicle, building, or structure is likely to cause harm to persons or damage to property or likely to cause loss of life or property.

“The minister is also empowered to designate an area as especially vulnerable. The director general is authorised, with the approval of the minister, to prepare a special area precautionary plan for mitigation and prevention of disasters in a designated vulnerable area. However, a draft of the order with the proposed measures has to be published and an opportunity given for public consultation.”


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