The constitutionality of the Government's COVID-19 responseTuesday, March 31, 2020
I have seen the statement issued by the Independent Jamaica Council for Human Rights (IJCHR) on March 25 (as reported in the Jamaica Observer on March 27). While one should always hesitate to disagree with Dr Lloyd Barnett on constitutional issues, I do not share the views expressed in the IJCHR statement.
We should start by acknowledging that the IJCHR has not questioned the appropriateness of the measures implemented by the Government to address the present crisis, or whether those measures meet the constitutional standards for derogating from protected rights. The IJCHR's point is that the Jamaican Constitution mandates a process for addressing situations like this, and the Government has not followed that process.
I do not agree.
The restrictions imposed by the Government will necessarily infringe certain constitutional rights, including the right to freedom of movement. The constitution recognises that in some circumstances it may be necessary to do so, and it sets out two different standards or tests that the State must meet in order to justify such infringements.
The first is in section 13(2), which provides that “save only as may be demonstrably justified in a free and democratic society”, the State shall not take any action that infringes any of the protected rights.
The second is in section 13(9) which provides in effect that the State can infringe certain rights by “measures that are reasonably justifiable for the purpose of dealing with the situation that exists during a period of public emergency or public disaster”.
The courts have held that the first test (demonstrably justified in a free and democratic society) is a much higher and more stringent test than the second (reasonably justifiable for the purpose of dealing with the [present] situation).
A measure will only be demonstrably justified if it is plainly and obviously justified. The inclusion of the words “in a free and democratic society” make that test even more stringent. On the other hand, there may be different views as to what is reasonably justifiable. Therefore, the Government may be able to show that a particular restriction meets the lower, reasonably justifiable standard, but not the higher, demonstrably justified standard.
The IJCHR statement points out, correctly, that the constitution specifies the procedure by which “periods of public emergency” or “public disaster” are declared, and the parliamentary oversight and other protections that would apply if they are declared. The criticism is that the Government has not followed that process.
But, in my view, the constitution does not require or even envisage that the Government must implement that process. If, as in this case, the Government does not do so, it must justify the various restrictions and infringements by meeting the higher standard.
One can debate whether the present measures satisfy that higher standard — in my view, most do — but I don't think we can question their constitutionality merely because the Government has not implemented the section 13(9) procedure.
I would add for completeness that section 14, which sets out the right to freedom of the person, permits the State to detain people in some circumstances in order to prevent the spreading of contagious diseases. That is another situation where the Government can implement restrictive steps without declaring a state of public disaster or emergency.
B St Michael Hylton, QC
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