Editorial | DRMA and the constitution

If Kamina Johnson Smith is understood correctly, it is the view of the Government that it has reserve powers, other than those under the Disaster Risk Management Act (DRMA), should they be required, for its response to the COVID-19 epidemic. It could formally declare a period of public emergency, the foreign minister told the Senate last week. What she didn’t say, however, is what are the substantially greater powers the administration could exercise with a state of emergency than are available, and in use, under the DRMA.

What the minister did, though, was provide a new opportunity for questions, first raised by Jamaica’s top constitutional lawyer, Lloyd Barnett, about the constitutionality of the route the administration took to its anti-COVID-19 activities, which has nothing to do with the merits, or otherwise, of the specific initiatives. Indeed, at the time of his criticisms, nearly a month ago, Dr Barnett praised the actions of the Government.

His contention, however, was that the Government had short-circuited the Constitution by employing the DRMA without the declaring of a state of emergency, which would mean greater parliamentary oversight of the process, including special legislative majorities, if the emergency period were extended beyond an initial fortnight.

This isn’t merely an academic exercise, for the debate goes to the heart of constitutional government and of dangers that might lurk to rights and freedoms when societies are tolerant of shortcuts or loose arrangements even in times of crisis.

Jamaica’s Constitution concedes to Parliament’s right to a limited abridgement of guaranteed rights and freedoms, insofar as these are “demonstrably justified in a free and democratic society”. It also specifically exempts as constitutional overreach measures that are reasonably justifiable for the purpose of dealing with the situations that exist “during a period of public emergency or public disaster”.

Enforcement

In the event of a natural or environment hazard, DRMA empowers the prime minister to declare “the whole, or part of Jamaica, a disaster area”, and to take necessary action, including restricting movement and assembly, if required, to mitigate the disaster. It is these powers that have been used in the enforcement of curfews, quarantining of regions and communities, closure of businesses, and in the orders for elderly persons to stay at home.

However, Dr Barnett, who is also the president of the Independent Jamaica Council for Human Rights, doesn’t believe that the DRMA can stand on its own. Instead, he argued, the Government should have invoked Section 20 of the Constitution, which deals with the declaration of periods of “public emergency” and “public disaster”, both of which require proclamations by the governor general and can only be in force for 14 days, unless extended by Parliament. Extensions can be up to three months at a time but require two-thirds majority votes by both Houses of Parliament.

The Constitution defines the circumstances of a public disaster as the occurrence “of any earthquake, hurricane, flood, fire, outbreak of pestilence, outbreak of infectious disease or other calamity, whether similar to the foregoing or not”. COVID-19 pandemic clearly falls within this definition.

The voices to the contrary notwithstanding, and in the absence of a full intellectual and judicial airing of the matter, we find greater sympathy with Dr Barnett’s analysis of the issues and his argument of the primacy of the Constitution over statute.

The Government has, up to now, done nothing that abuses the powers it would normally, or constitutionally, exercise in a circumstance such as now, which confronts Jamaica. But that is beside the point. For as Dr Barnett pointed out, “It is in times of crises, when we are concentrated on confronting dangers, that the need to ensure that we do not circumvent our constitutional protection of human rights is at the highest.”

That is why we urge that serious attention be paid to this matter.