To test or not to test
Potential legal minefield as Government ramps up controlled re-entryFriday, May 15, 2020
BY CHARMAINE N CLARKE
THE Government appears to be taking a cautious approach to the issue of testing people entering the country, as it has the potential to be a hot potato.
Responding to questions on the legality of such a move, highly regarded Queen's Counsel Michael Hylton said the issue is straightforward for non-nationals. Jamaica has the right to allow or deny them entry, and it can also make entry conditional on a COVID-19 test.
“In fact, Jamaica could impose different restrictions or conditions on different non-nationals depending, for example, on where they are coming from,” he said.
It gets more complicated when the person seeking entry is a Jamaican. All the country's citizens have the right of entry. Hylton pointed out, however, that under the constitution that right can be restricted. “For example, if the governor general has declared a state of public emergency or public disaster it can implement measures that are reasonably justifiable for the purpose of dealing with that situation, and section 13(9) provides that there would be no breach of that right,” the attorney explained.
“Furthermore… even without a declaration the State could restrict the right as long as it can satisfy a court that the restriction is demonstrably justified in a free and democratic society. Requiring Jamaicans to take a test for COVID-19 as a condition of entry would certainly be a restriction on that right, but I think a court would probably hold that this would be a reasonably justifiable measure in the present circumstances,” Hylton stated.
But making the test a prerequisite for entry is just the tip of the iceberg. The next hurdle is determining what comes afterwards. Hylton believes quarantine is a reasonable action, but refusal of entry is another matter. It would be up to the Government to make its case.
“The Government would have to show why [denial of entry] was the only viable option. It may be able to do that by producing scientific evidence as to the extent of the risk to the persons who would have to transport, guard and perhaps care for the infected person. The number of infected people and the resources available would also be factors. The court may also consider how other countries have dealt with this issue,” he said. “Ultimately, it is a question of proportionality. Is the measure taken proportional to the risk being faced? But the Government would have to carefully assess both the risk and all possible options, and be in a position to explain why it chose this one.”
These are likely issues the Government is now exploring as it formulates protocols for reopening the economy, and bringing home the remainder of the almost 5,000 Jamaicans stranded abroad after the island and most countries imposed travel restrictions in response to the global pandemic.
Hylton is clear that the issue needs to be carefully thought out.
“If I was advising the Government — which I am not — I would recommend that they declare a period of public disaster, and carefully consider all the options for dealing with Jamaicans who may test positive and want to return home. This would include assessing how other countries are dealing with that problem,” he said. “They should then choose the option that least infringes the right, and only deny entry if there is no other viable option, taking all the risks into account.”
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