COVID-19 and the constitution

COVID-19 and the constitution

LLoyd
Barnett

Tuesday, March 31, 2020

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Please permit me to respond to B St Michael Hylton, QC's letter expressing disagreement with the Independent Jamaica Council for Human Rights (IJCHR) statement which I co-authored.

The essential differences between the opinions result from the difference in approach to constitutional interpretation. Hylton has taken an essentially textual and literal approach. The IJCHR approach is dictated by the liberal purposive method which is authoritatively approved as appropriate for constitutional construction.

There is a vast difference between the approach to interpreting the constitution, which deals with the structure and responsibilities of Government and the fundamental rights of individuals in a wide variety of circumstances, and the interpretation of the articles of association of a company, in respect of disputes between shareholders and directors over the issue of bonus shares.

The emergency provisions of the constitution clearly provide a scheme for dealing with emergency situations, not just individual cases of infectious diseases. The published Gazette states that on March 13, 2020 “the prime minister by order declared the whole of Jamaica to be a disaster area”. It also states that “measures apart from or in addition to those specifically provided for in the Disaster Risk Management Act should be taken promptly”. This is exactly the type of situation that the emergency provisions of the constitution are designed to deal with.

Hytlon mentions that section 14, which sets out the right of freedom of the person permits the State to detain people “in some circumstances in order to prevent the spreading of contagious disease”. The measures taken go much further than the detention of particular persons, such as occurs under the Quarantine Act. For example, recently there was a report of the occurrence of cases of yellow fever in Trinidad. Accordingly, travellers from Trinidad into Jamaica were required to present themselves to the public health officers, and if they did not have a vaccination certificate and were found to have a high temperature they were detained for further examination.

This is completely different from the varied and extensive measures now being taken which include the general prohibition of the freedom of movement of people into and out of a wide geographical area, although it has not been shown that those individuals have come anywhere near to an infected person or any contaminated place or have any relevant symptoms. Similarly, individuals over 75 have been ordered to remain in their home irrespective of their state of health or the fact that their intended destination will not bring them into close proximity with other people.

Furthermore, Hylton has relied on section 14, but this section itself demonstrates the inappropriateness of his approach because in other parts of the same section, it is provided that a detained person “shall have the right to be visited by his spouse, partner or family member”. This is clearly inconsistent with the Government scheme.

Hylton expresses the view that the constitution does not envisage that the Government must implement the emergency process. This is illogical, because the particular circumstances are precisely what the emergency provisions provide for. The measures being taken are stringent and expansive and are therefore exactly the situation which demands the special procedure and safeguards of the emergency regime, which includes:

(1) continuation by a special majority of both Houses of Parliament;

(2) detained person's rights of access to an independent tribunal; and

(3) a special and specific right of access to the court under section 20(5).

Hylton has advanced no rational or good reason why the Government should ignore or circumvent the clear constitutional provisions in the adoption of what are, in effect, far-reaching emergency measures.

Dr Lloyd G Barnett, PhD, is an attorney-at-law. Send comments to the Jamaica Observer or dr.lgbarnett@gmail.com.

Editor's note: Full text of B St Michael Hylton, QC's letter on Page 12.


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