MARLENE Malahoo Forte, minister of legal and constitutional affairs, has challenged questions raised among members of the legal fraternity about the validity of the states of emergency (SOEs) prior to the tabling of the attendant regulations in Parliament.

Speaking in the House of Representatives on Tuesday, Malahoo Forte said the public had been misled on when emergency regulations take effect, and that the confusion in fact came into play when the emergency powers regulations for the latest round of (SOEs) was circulated in Parliament last week, directly from the Government’s printing office.

She was speaking against the background of the emergency regulations in respect of the SOEs declared by the Government on December 6, for the parishes of Clarendon, St Catherine, St James, Westmoreland, Hanover, and sections of Kingston and St Andrew and St Ann.

“The validity of the regulations was brought into question because it was reportedly said that until and unless they were tabled in the Parliament, they were of no effect. I should like to advise that the regulations in question were promulgated by the governor general, pursuant to power to do so granted by the Parliament under Section three of the Emergency Powers Act,” the minister stated, pointing to the statements attributed to two senior members of the bar, including a constitutional law expert and a former solicitor general, about the validity of the SOEs.

Malahoo Forte pointed out that the emergency powers regulations, unlike some other pieces of subsidiary legislation, do not require any affirmative or negative resolution to commence, as during a period of public emergency, the governor general is authorised to make such regulations, which then confers on any Government department a number of powers.

She added that the law further sets out that the regulations are to be laid before the Senate and the House of Representatives as soon as possible after they are made and remain in place for no more than seven days from that time, unless a resolution is passed by the Senate or the House of Representative providing for a continuation.

“The truth is that the Parliament may delegate its subsidiary lawmaking primarily to ministers and other authorities and different laws may specify how the power is to be exercised, not all of them require that the regulations require further action by the Parliament. So some ministers are permitted to make an order to deal with things [while] other entities can make regulations by order. Some do require another legislative step of an affirmative or negative resolution, some require nothing. But all laws must be gazetted, and they come into effect on the date of the gazette, if no other effective commencement date is specified in the law,” she explained, after Member of Parliament for St Andrew Western Anthony Hylton admitted that it was a learning moment for him.

“I was not of that understanding; I believe that the fact that this statement had to be made, that it speaks to the fact that the clarity is needed. It was not my understanding previously that all that needs to happen is that it [the emergency regulations] is gazetted and laid on the table unless the legislation specifically so provides. It’s going to raise some questions as to whether the Emergency Powers Act are effective without the tabling, and when it commences,” he said.

Malahoo Forte pointed out that the Emergency Powers Act provides for the making of these types of regulations by the executive (the governor general), and not the legislature (Parliament). “This a permissible delegation for the stated purposes, in circumstances where a state of public emergency or public disaster exist. It is most unfortunate that the people of Jamaica have been misled on this very important matter,” she stressed.

She emphasised that the requirement to table the regulations speaks to how long the SOEs last and not when they begin.

The legal affairs minister further explained that the misunderstanding arose at last week’s sitting of the House when the regulations were circulated, among other documents, and then withdrawn. “It isn’t the norm for the regulations to come from the printing office and be sent straight to floor of the Parliament without being checked for accuracy, among other things, to ensure there were no printing error. So when they were pulled back from circulation, I think there were some misunderstanding that they were tabled and pulled back, so the misbelief was that there were no regulations at all, because they were withdrawn,” she explained.

Prime Minister Andrew Holness redeclared the SOEs a little over a week after the parliamentary Opposition rejected the Government’s efforts to extend the previous SOEs for 46 more days, denying it the two-thirds majority that was needed in the Senate in order to get the extension. Opposition Members of Parliament also voted against the extension in the Lower House.