Several people not wearing masks arrested in Half-Way-Tree
Lawyer questions legality of action taken by policeTuesday, September 01, 2020
BY ALPHEA SAUNDERS
SEVERAL people are facing charges for breaches of the Disaster Risk Management Act (DRMA) after they were arrested by the police in the Corporate Area yesterday for not wearing masks, but it was not clear whether the charges are properly grounded in law.
Prime Minister Andrew Holness signalled last month that the Government would be moving past moral suasion to use tough enforcement measures to get persons to comply with safety protocols under order, as the number of COVID-19 cases in across the island continue to skyrocket.
A number of private sector groups have also agreed that this is the route the Government should take, instead of moving to another lockdown phase which could cripple industry and economic activity.
Yesterday, communications officer for the Jamaica Constabulary Force, Senior Superintendent Stephanie Lindsay told the Jamaica Observer that the police have intensified enforcement of the DRMA, beginning in the busy Half-Way-Tree area. She said those arrested have been granted bail and are to be placed before the parish court at a later date.
“They [the police] will be doing it all across [the island] cause people are just not wearing their masks, so we have to be forcing them to take care of themselves and to take care of others using the legislation,” she said, noting that there were also arrests for other breaches of the Act related to gatherings and entertainment events.
However, attorney at law at Myers Fletcher and Gordon Gavin Goffe said he was not aware of the legal grounds on which the police can arrest persons for not wearing a mask. He pointed out that neither the legislation nor the orders issued by the Government speak specifically to this as a criminal offence.
“I don't think they [the police] have the power to arrest..for example, people who are not obeying the quarantine or isolation [orders] those would be the kinds of orders for which criminal sanctions could apply; but not maintaining social distance, not wearing your mask, not sanitising your hands – those aren't things which you could arrest anybody for breach of,” he said, arguing that the prime minister does not have the latitude to, with the best of intentions, unilaterally create offences.
“That's why it's a very limited scope in which the prime minister can make orders which carry criminal sanctions – and this particular order does not fall into that category,” he said.
“It is an order made by the prime minister under the Act but the breach of every order doesn't mean that it is a criminal offence...I wouldn't say its moral suasion, but I also wouldn't say that there is any penalty attached to that aspect of the order as there are for other aspects of the order. Under the scheme of the Act not every direction which is given by the prime minister carries a criminal sanction if it is breached,” he elaborated.
Goffe said a COVID-type crisis was not envisioned when the law was being crafted, but that the absence of a specific provision for the wearing of masks is not necessarily a deficiency in the law.
In the meantime, Health and Wellness Minister Dr Christopher Tufton says provisions of the Disaster Risk Management Act will be rigorously enforced as part of the Government's increased coronavirus (COVID-19) control measures.
“The Orders have been established in law as to what persons must do, and failure to comply will attract some sort of penalty. The police have been working with the public health sector and other stakeholders; we are going to have to enforce more rigorously. We are going to probably have to do a public display of enforcement so that persons can understand that we are serious and there are consequences to ignoring the protocols,” the Jamaica Information Service quoted the minister as saying yesterday.
Dr Tufton was speaking with members of the media during a public education activity to promote the use of masks in public spaces. The exercise saw teams from the ministry and South East Regional Health Authority (SERHA) distributing Ministry of Health and Wellness-branded fabric masks to commuters in Half-Way-Tree square, yesterday.
In April of this year the Government announced the mandatory wearing of masks in public spaces as part of measures to contain the transmission of COVID-19, and Dr Tufton said yesterday that a critical aspect of the Act is the wearing of masks in public spaces.
Pointing to the recent increase in COVID-19 cases across the island, the minister attributed this to delinquency by persons in adhering to the health safety protocols established by the ministry.
“Part of the analysis we have done shows the breach in the protocols that are established. A lot of persons are not observing the quarantine protocols and are exposing their families and their communities. A lot of persons are not wearing masks in public spaces and are not sufficiently sanitising,” he said.
“The challenge is that those consequences are not just about the wrongdoer in question; it is about others who they may infect and affect. The challenge we face is that too many persons are not doing what they ought to do. We want to use moral suasion because we don't want to arrest or charge anybody, but sometimes it is important to send a message,” he warned.
Up to Sunday the country recorded 245 new confirmed COVID-19 cases, bringing the total number to 2,357.
— Additional reporting by JIS
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