Garnett Roper | On what law? - Questioning the basis of the Government’s recent actions

I write in support of the concerns raised by eminent jurist and constitutional lawyer Lloyd Barnett, QC, that the Public Health Act, the Quarantine Act, and the Disaster Risk Management Act do not give the prime minister the constitutional cover required to infringe the rights of Jamaican citizens. I also note that a Gleaner editorial of March 21, 2020, also warned about the dangers of acting on a ground of mere expediency alone because, as Barnett put it, this may become the slippery slope.

I am, therefore, calling for a full discussion of these matters or, in the absence of discussion, judicial review of the legal basis for the actions being taken by the Government. Two weeks ago, the Government denied 45 Jamaicans on the Marella Discovery 2, which was in Jamaican waters, permission to disembark the ship in their own homeland. The Government did so on the basis of the above-mentioned laws. (The request from the captain to dock in Kingston was denied on April 2, when the ship was in Jamaican waters.)

During this past week, the Government ordered a lockdown of the parish of St Catherine, allowing residents to leave their homes only on Wednesday and Saturday for shopping for food and medication. I want to know what law gives a sitting prime minister the power to deny Jamaican citizens the right to enter their homeland and what law gives a sitting prime minister the power, without ensuring that adequate social protections are in place, to confine people to their houses, to potentially starve in their households without the option of leaving their homes for five days at a time. If they have the money to stock up on food and medicine, fine, but what if they do not?

These are extraordinary times, and others elsewhere have used these circumstances of the global pandemic to engage in a power grab. It must not happen here. Our leaders must show their mettle and the stuff of which they are made even in the most difficult times by being constrained by the demands of the Constitution, in particular, the Charter of Rights. I raise these concerns for the following reasons:

The first is the danger of arbitrariness and randomness of approach. We believe the administration that its action to impose the restriction on the parish of St Catherine was driven by the numbers.

There are 787 employees of Alorica, of which 70 have so far tested positive. I understand that the lockdown is in order to identify the cluster of addresses in which the total group of employees live.

I also understand that even though social distancing is challenged by the arrangements in BPO locations, 40,000 jobs means J$3 billion in payroll monthly cannot be easily given up. (By the way, I do not accept as credible the belated declarations by the Ministry of Health that Alorica was compliant. If you are compliant and 70 of your employees have tested positive, what does lack of compliance look like?)

Absence of frank conversation

I also accept that the difficulties in locking down the Kingston Metropolitan Transport Region lie in the fact that it is a threat to the livelihood of far too many. This means that Portmore and Spanish Town are targeted, relative to Kingston and St Andrew, because they are weak fences. The problem is the absence of a frank conversation as the basis for action. The trade-offs need to be presented and provisions made and communicated.

Second, the absence of a requirement to seek parliamentary oversight or support for any extensions that may be required has given the option of a rush to judgement to the administration. If there had been a declaration of a state of public emergency, the Government would have been constrained by the knowledge that for any extension beyond the first 14 days, it would require the support of a two-thirds majority of both houses of Parliament. This would therefore imply a duty to consult and a duty to make the case. The implementation of the seven-day lockdown in St Catherine was done in a manner tantamount to shouting ‘fire’ in a crowded theatre.

It is exactly how not to do it, if one’s intention is not to spread panic. Because of the lack of consultation and thoughtful implementation, the Holness-led administration has succeeded (as happened in the north of Italy, by the way) in spreading the hotspot from Portmore to elsewhere. We are a society of laws; we are a democracy. Let us take our time, let us consult, and let us take the people into our confidence. I do not believe the shopping hours in Portmore, for example, are sustainable. There are eight supermarkets, no ground-provision markets, and 200,000 residents.

There are not enough shopping outlets for food and time for people to shop. It cannot work, and when people get hungry enough, no army can keep them in their houses, unless there is food in there.

Third, we are creating a hell of a precedent for the actions of future political leaders in less credible circumstances. Do not give power to political leaders that is unrestrained and unaccountable and without oversight; it will come back to haunt us. There is a new, invisible, and deadly virus already infecting people in our island home. We need to act together as a people to combat this.

Let us get the people to participate voluntarily in the measures aimed at overcoming this pandemic and slowing the contagion. Let us respect their rights and so build both our institutions and our democracy. We need to do something more to create a social safety net. We need food banks, and we need to get cash into the hands of our people. We need to adjust some of the fiscal targets and make more money available, or what we face will make the pandemic even worse by the social dislocation, if not protest, that we foment. We do not want any tyrant, however suave, to rule over us, not now and not in the future. Let the Jamaican Constitution be our guide in these difficult times.

- Rev Garnett Roper is president of the Jamaica Theological Seminary. Email feedback to columns@gleanerjm.com