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Border clash

Jamaicans' constitutional right to come home

GAVIn GOFFE

Sunday, March 29, 2020

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The prime minister's decree that the country's ports be closed to all incoming passenger traffic, including Jamaican citizens presently overseas, raises a number of constitutional law issues. The Government has a responsibility to protect the rights of all its citizens, including the 2.6 million in the Diaspora. The Government must also protect us here in Jamaica from COVID-19. Our Charter of Fundamental Rights and Freedoms is there for a time such as this.

When any outbreak occurs there's a natural instinct to prefer locals over returning residents. In 2014, two US citizens who had contracted the Ebola virus whilst performing health care work in Liberia were brought back into the US for treatment, amidst tremendous public outcry. Then-presidential candidate Donald Trump tweeted: “Stop the EBOLA patients from entering the US. Treat them, at the highest level, over there. THE UNITED STATES HAS ENOUGH PROBLEMS!”

He followed up with, “The US cannot allow EBOLA-infected people back. People that go to far away places to help out are great — but must suffer the consequences!”

Fast-forward to 2020, Trump is president and US citizens and permanent residents who have visited high-risk COVID-19 areas are allowed back, but must fly into one of America's 13 international airports with enhanced entry-screening capabilities.

Our constitution, with its revisions in 2011, is much clearer and stronger on citizens' right to return home than the American Constitution. Listed in the Charter of Fundamental Rights and Freedoms is “the right to freedom of movement, that is to say, the right (i) of every citizen of Jamaica to enter Jamaica…” This right is expressly subject to another provision which states, “Nothing contained in or done under the authority of any law shall be held to be…in contravention of…this section…to the extent that the law authorises the taking, in relation to persons…whose freedom of movement has been restricted by virtue of that law, of measures that are reasonably justifiable for the purpose of dealing with the situation that exists during a period of public emergency or public disaster.”

What is “reasonably justifiable” (although not in the context of a public emergency) was discussed at length in Julian Robinson v The Attorney General of Jamaica, or the “NIDS [national identification system] case” as it's popularly known. In that case, the Constitutional Court discussed the need for proportionality when protected rights are violated. The proportionality test has four subcomponents:

(i) the measure restricting the right must have a legitimate goal;

(ii) it must be a suitable means of fulfilling this goal;

(iii) there must not be any less-restrictive but equally effective alternative; and

(iv) the measure must not have a disproportionate impact on the right-holder.

In the current COVID-19 crisis there can be no doubt that parts (i) and (ii) have been satisfied. COVID-19 is a global threat like nothing any of us has seen before. Strong, decisive, and often uncomfortable measures are required in order to save lives. The Government must consider the health and safety of immigration and Customs officers as well as other staff working at our airports and sea ports. Restricting the movement of people, whether inside the country or from entering the country, is a fundamental part of every nation's strategy to combat this pandemic.

There is, however, room for debate on the third and fourth components.

Clearly, there are alternatives to the travel ban that are less restrictive. Would it not be equally effective to impose a full ban on symptomatic citizens whilst asymptomatic ones could be allowed to enter and placed in quarantine in a government facility and tested immediately? Some will point to Elephant Man's recent 'gully creep' past immigration officers to say that such protocols are ineffective. Others will say that it was the half-hearted enforcement of protocols, and not “Ele”, which was the weak fence.

Most countries, including the majority of Caricom member states, are at the time of writing permitting their citizens to come home, subject to increased screening, testing, and 14-day quarantine. Notable exceptions include Trinidad, which has refused to reopen its borders to 35 citizens stranded in Barbados. Their national security minister is reported as saying that those citizens “took personal decisions”, but that “the duty of the Government, which we are very clear about, is to protect those who are here in Trinidad and Tobago and to uphold our decision to close the border”. Trinidadians do not, however, have a constitutional right to enter their home country. Neither do Haitians or Guyanese citizens, whose governments have also closed borders to all incoming passengers.

Any Jamaican citizen affected by the ban on incoming passengers may request a prompt review of his or her case by an independent and impartial tribunal. You don't need to be denied entry into the island to request a review or, alternatively, challenge the constitutionality of the Disaster Risk Management (Enforcement Measures) (Amendment) Order, 2020.

What about Jamaicans whose visas or work permits will expire during this period? Must they, at least, attempt to leave the foreign country and go somewhere else so as not to “overstay”? If they do overstay, how will that affect any future application to return? What provisions have been made for deportees, or are all deportations on hold as well?

This takes us back to the fourth component of the proportionality test and whether the order will have a disproportionate impact on some.

Although the measures seem to have support from the majority of local residents, we must all guard against disregard for the constitutional rights of “others” who are directly affected by these restrictions, whether they live in Cornpiece Settlement or Connecticut, Bull Bay or Brooklyn. Some of the responses on social media are as insensitive as the statements made about the Ebola patients in 2014.

As J Nicholas Murosko said in his 2016 article 'Communicable Diseases and the Right to Re-Enter the United States', “Because the threat of communicable diseases is certain to be a recurring narrative in the 21st century, it is imperative that our global health organisations, world leaders, and even our legal systems learn from [the 2014 Ebola outbreak]. An informed dialogue concerning the interplay between public health and our legal system may help curb some of the fear and callousness demonstrated when sick citizens return home.”

Gavin Goffe is a partner at Myers, Fletcher and Gordon, and is a member of the firm's Litigation Department. Send comments to the JamaicaObserver or gavin.goffe@mfg.com.jm. This article is for general information purposes only and does not constitute legal advice.


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