Take heed, Madam Attorney General

Take heed, Madam Attorney General

Dudley C McLean II

Monday, March 30, 2020

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The Government of Jamaica, especially its timely response to the novel coronavirus pandemic, is worthy of commendation. One of the Government's strategy in containing the spread is that of gentle persuasion without the implementation of draconian measures. However, it is very important that all actions by the Government are constitutionally grounded.

I was, therefore, shocked at the nonchalant response of Attorney General Marlene Malahoo Forte to the concerns raised by one of Jamaica's constitutional lawyers, the learned Dr Lloyd Barnett, by saying, “We don't have the luxuries of sitting down and getting into niceties.” Such arrogance!

The Constitution of Jamaica is the supreme law of the land. How Prime Minister Andrew Holness, along with his hard-working ministers, operates within the context of this law, in handling the COVID-19 crisis, will impact the future of the people and the Jamaica Labour Party (JLP).

It is important to note that while the attorney general is the principal legal advisor of the Government, Dr Barnett commands much distinction, admiration, and confidence as a legal mind on constitutional matters. Hence, his concerns should be interpreted as having the best interest of the Government and people of Jamaica at heart.

In a defensive stance, the attorney general asked: “Do you think that we really would embark on an action that we consider unconstitutional?” ( The Gleaner, March 27, 2020). This ought not to have been so; rather, some consideration to the points raised should have been displayed. She then weakened our confidence in her with the excuse that Jamaica was in “uncharted waters”. The constitution is so framed to address moments of “uncharted waters”, Madam Attorney General.

We know that the Government, through the governor general, can invoke emergency powers by proclamation via “subsection (4) of section 26 of the Constitution of Jamaica, which is issued upon the governor general being satisfied... that a public emergency 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...” Currently, under the Disaster Risk Management Area Order 2020, the Government has to negotiate with people and businesses that sometimes includes a cost component. With the need to identify 600 or more rooms to care for possible COVID-19 cases and, where needed, to command air emergency supplies and additional transportation, the Government under the Emergency Powers Act of the constitution does not need further parliamentary approval, nor even to negotiate payments with companies to ensure the health, security and safety of our citizens during this pandemic.

As such, Dr Barnett is asking the Government to anchor its declaration of the entire island “a disaster area” under the Disaster Risk Management Area Order 2020 within “subsection (4) of section (26) of the Constitution of Jamaica. In so doing, it would safeguard all actions of the Government in the best interest of the people and to ensure they are protection from legal challenges.

Madam Attorney General may want to take heed.

Dudley C McLean II writes from Mandeville, Manchester. Send comments to the Jamaica Observer or dm15094@gmail.com.

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