While The Gleaner has long advocated for stronger laws to help mitigate against the spread of COVID-19, the organisation does have reservations about the way it is being done. Those questions warrant a second look.

Published March 26, 2021

Uneasy with disaster law amendment

Exasperated by their inaction, this newspaper has often urged the police to enforce Jamaica’s COVID-19 regulations, especially those requiring that people wear masks in public places, particularly passengers and drivers of public transportation. These, we feel, are low-hanging fruits to help contain the coronavirus.

We, therefore, welcome the news that, finally, the Parliament this week passed legislation for a ticketing system that should make it easier for the authorities to penalise people who break the rules. The police should now get on with the job. This newspaper, like the political Opposition, is, nonetheless, uneasy that the amendment of the Disaster Risk Management Act gives the prime minister the power to create offences that are criminal in nature, without reference to, or oversight from, Parliament.

It matters not that the original law provided the route to this development. Or that everyone, this newspaper included, either missed the point or did not complain when the original bill was being debated by Parliament in 2015. Circumstances, however, have a way, as the COVID-19 pandemic has done, of throwing new light, or different perspectives, on old issues. When the Disaster Risk Management Act was originally before Parliament, in relatively normal times, no one was paying attention . In any event, our primary concern now is adherence to best practices that insulate Jamaica’s democracy from overreach by leaders, now and in the future.

Indeed, under the law as originally framed, the prime minister was given the authority, on her/his declaration of a disaster emergency, to issue orders to mitigate the disaster. People could be prosecuted for those breaches, but first had to be warned that they were committing an offence, thereby providing an opportunity to rectify their behaviour. The orders issued by the prime minister were not, of themselves, criminal offences.

The amended law, however, creates specific offences, with fixed penalties – relatively high fines – for breaching declared disaster management regulations. This has the full endorsement of this newspaper.

OUR UNEASE

Here, though, is our unease. While these initial offences and associated fines had input and oversight from Parliament, with the amendment, the prime minister has the power to write into future disaster management orders – whether for COVID-19 pandemic or other crises – new offences with their own penalties. He need not make any reference to Parliament, which, as Opposition Leader Mark Golding observed, is not the norm in liberal democracies. Indeed, in Westminster-style systems, when ministers are given the authority to craft and implement orders and regulations, these, usually, are subject to either affirmative or negative resolutions by Parliament.

Prime Minister Andrew Holness is not wholly unsympathetic to the concerns. He might have even embraced them, he indicated, “were it the case that the legislation did not prescribe what the prime minister can do and when this kind of exceptional powers can be used”.

“It can only be used in the declaration of a disaster,” he said. Further, he argued, the “main legislation itself would give some limits as to what could be done”.

First, presidents, prime ministers, and leaders of all stripes have been known to abuse their powers even during periods of disasters and national crises. In any event, the opening provided by the amendment is sufficient for exploitation by an unscrupulous leader. There may be nothing to fear from Andrew Holness, but we do not know who may follow him. We prefer to rely on the checks and balances between the executive, legislative and judicial branches of Government, bolstered by strong civil society. Against that backdrop, the PM might consider making disaster management orders that create criminal offences be subjected to negative or affirmative resolutions by Parliament.

NOT THE BEST WAY

We also note the prime minister’s concern that in periods of crises, it may be difficult for some institutions to function. The Gleaner, however, does not believe that the best way to plan for such eventualities, or to ensure the preservation of the State and its symbols of authority, is via a concentration of power. There are other things that can be done to build institutional resilience.

In the current circumstance, we would start, as we suggested previously, by ensuring that every member of parliament, plus the staff of the legislature, is vaccinated against COVID-19. So, too, should the governor general. Legislators must be able to meet in relative certainty that they are protected against the virus.

As the current situation insists, the rules of Parliament must be changed so that, if required, full sittings of the House and Senate, and their committees, can be held remotely. Each member of parliament, and staff, must be kitted out with the technology to ensure that this is possible. Alternative, secure venues/facilities must also be identified for meetings of Parliament in situations where the legislature cannot be at its regular seat.