Malahoo Forte says country ‘misled’ on effect of SOE regulations
Published:Wednesday | December 14, 2022 | 1:42 AM
Minister of Legal and Constitutional Affairs Marlene Malahoo Forte has asserted that Jamaicans were “misled” last week by two senior members of the legal profession about when Emergency Regulations take effect.
On December 6, Prime Minister Andrew Holness announced the reimposition of states of public emergency (SOEs) in Clarendon, St Catherine, St James, Westmoreland, Hanover and sections of Kingston and St Andrew. The measure was also activated in St Ann.
In a statement during the sitting of the House of Representatives on Tuesday, Malahoo Forte said the validity of the regulations was brought into question over concerns about their effectiveness. The regulations were tabled in Parliament days after the declaration of the crackdown.
“The states of public emergency were consequently described as toothless,” she said referring to a Gleaner article citing constitutional experts Dr Lloyd Barnett and Michael Hylton, King’s Counsel.
Malahoo Forte said the regulations do not require any affirmative or negative resolution to commence, as some other laws require, as The Emergency Powers Act provides for the making of these types of regulations by the executive (governor general).
She added that the legislature has delegated that subsidiary lawmaking power to the executive arm of government.
“The requirement to table the regulations speaks to their duration – how long they last. The requirement does not deal with when they commence. The regulations were duly gazetted and published on December 6, 2022. They were subsequently laid in the Senate on December 9, 2022 and then the House on December 13, 2022. It is most unfortunate that the people of Jamaica have been misled on this very important matter,” Malahoo Forte remarked.
In response, St Andrew Western Member of Parliament (MP) Anthony Hylton, an attorney and lawmaker with parliamentary experience spanning nearly three decades, said it is a teachable moment for him.
“Until I saw and read this statement, I was not of that understanding either, and I believe that the fact that this statement had to be made in the context of what has been said by the eminent constitutional lawyer and others speaks to the fact that clarity is needed. I believe it may not end here, because there are questions, there will be questions,” he said.
MP Hylton reasoned that regulations are subsidiary legislation and that in the main act of the law, it provides for the making of regulations.
“It is not my understanding previously that all that needs to happen is that it is gazetted and laid on the table unless the legislation so specifically provides,” he said.
The St Andrew Western MP added that it has been the practice, even in respect of the SOE matter, that the regulations have previously debated and discussed.
Malahoo Forte said the comments made by the lawyers were “premised on a misunderstanding”.
She explained that during the sitting in the House last week, a number of documents were circulated, including the regulations.
“It is not the norm for the regulations to come from the printing office and be sent straight to the floor of the Parliament, without being checked for accuracy, among other things, to ensure that there was no printing error … .
“When they were pulled back from circulation, I think there was some misunderstanding that they were tabled and pulled back … . The misbelief was that there were no regulations at all because they were withdrawn,” Malahoo Forte said.