Knowledge…Shared…Multiplies
(This is the first in a three part series of articles on the controversial COVID 19 Bill)
In recent weeks there has been great public disquiet in Grenada and among Grenadians in the Diaspora about some provisions in the COVID 19 Bill. The Government of Grenada was scheduled to table the Bill in Parliament on 29th July. The Bill itself declared that it would come into force on 15th August 2020 and expire after one year. Many commentators, both professional and lay, have considered and pronounced on certain provisions in the Bill. Many have declared them to be unconstitutional and hence unlawful, since, of course, the Constitution is the highest law in Grenada and any law which is inconsistent with it is unlawful.
The Attorney General of Grenada, in defence, has made the point that the provisions which are considered offensive already exists in other legislation, in some cases going back close to 100 years. Some of the same provisions are also present, says the AG, in regulations passed during the emergency period. However, the AG has conceded, as he must, that the fact that these provisions already exist does not, by itself, make them constitutional.
Given the pre-existence on our law books of the impugned provisions, the response of the public has come as a great surprise to those in authority. I submit that the public response, and in particular the youth activism connected with the Bill, is more an issue for the field of political science than law. I will therefore confine my comments to jurisprudential aspects of the Bill.
Fundamental Rights
Let me start my by repeating an observation made by several other commentators. The COVID 19 Bill touches and concerns the enjoyment and exercise of fundamental rights protected under the Constitution. The Bill touches and concerns the right to liberty, property rights, privacy of the home, right against arbitrary search and arrest, freedom of movement, freedom of association and freedom of expression. It is therefore fitting and proper and very encouraging that our people should show great interest in the Bill.
No right is absolute
However, it is important to note that no right under the Constitution is absolute. We live and exist in a community of over 100,000 people. As such the State, to which we the citizens have conceded certain powers in exchange for protection and certain services, is authorised by section 38 of the Constitution to “make laws for the peace, order and good government of Grenada” and such laws may regulate the exercise and enjoyment of fundamental rights.
Parliament can place reasonable limits and restrictions on enjoyment of fundamental rights
The right of the State to place limitations and restrictions on the exercise of fundamental rights is recognized in the Constitution itself. So, for example, typically the Constitution allows the passage of a law limiting or restricting the exercise of rights provided that such law is –
reasonably required in the interests of defence, public safety, public order, public morality, public health….; and
reasonably required for the purpose of protecting the rights or freedoms of other persons
But importantly the limitation or restriction put in place by the law must not be such that it is not “reasonably justifiable in a democratic society”.
Specific exceptions
In addition to or instead of the general provision referred to above, some sections of the Constitution specifically refer to permissible restrictions and limitations. For example, section 3 of the Constitution states that
No person shall be deprived of his personal liberty save as may be authorised by law in any of the following cases, that is to say:
The section then proceeds to list 10 specific exceptions. Exception (g) which allows deprivation of liberty “for the purpose of preventing the spread of an infectious or contagious disease” is particularly relevant in the present context.
It is reasonable if required for a legitimate purpose; rationally connected to the purpose; proportionate to the purpose; and not so abhorrent that it cannot be justified in a democratic society
The effect of the provisions which permit the passage of laws which derogate from the enjoyment or exercise of constitutional rights is that the State may pass laws which encroach on the enjoyment of a fundamental right. However, such encroachment must be reasonably required to achieve an overriding interest. The overriding interests recognized by the Constitution includes defence, public health, public safety, public order and the protection of the rights of others. Further, the law or the thing done under the law must be acceptable in a democratic society. So it’s not a case of anything goes.
The courts have examined these requirements in a number of cases and have concluded that to pass the test of reasonableness, a law which encroaches or is capable of encroaching on the enjoyment of fundamental rights must exhibit the following features:
(a) It must be for a legitimate purpose, being one of the overriding purposes identified above;
(b) there must be a rationale connection between the restriction or limitation authorized by the law and the interest the law seeks to uphold; and
(c) the authorized limitation or restriction or intrusion must not be more than is necessary to achieve the goal of protecting or upholding the overriding interest; or put another way there must be a relationship of proportionality between the legitimate objective which the derogating law seeks to uphold and the restriction, limitation or intrusion which it authorizes.
State of emergency
In addition to the general provisions and specific exceptions referred to above, the Constitution recognizes that in periods of public emergency greater encroachment on fundamental rights are permissible. Hence section 14 of the Constitution states that
Nothing contained in or done under the authority of a law enacted by Parliament shall be held to be inconsistent with or in contravention of section 3 or section 13 of this Constitution to the extent that the law authorises the taking during any period of public emergency of measures that are reasonably justifiable for dealing with the situation that exists in Grenada during that period.
So for example, in periods of public emergency, individuals may be deprived of their liberty based on political views or affiliation.
However, section 15 of the Constitution seeks to balance the power given under section 14 by providing certain safeguards with regard to persons detained during a period of emergency. Such persons must have their cases reviewed within one month of being detained and then at intervals of not more than 6 months. Further, such reviews must be done by an independent and impartial tribunal. Additionally, the periods for which emergencies can be declared are regulated under section 17 of the Constitution and limited to a maximum of six months at a time.
Separation of powers
Under our constitutional system, there is a separation of powers. There are three branches of government. The Executive Branch, headed by the Cabinet of Ministers; the Legislative Branch (Parliament) and the Judicial Branch. The legislative branch is responsible for passing laws; the executive branch is responsible for administering the country within the limits of existing laws; while the judicial branch is charged with ensuring that laws passed by Parliament are not contrary to the Constitution and acts performed by the executive in administering the state are done within the law.
In reality there is great overlap between the executive branch and the legislative branch. Under our constitution, members of the executive branch are also members of the legislative branch. But there is stricter separation between the executive and the legislative on the one hand and the judiciary on the other hand.
So under the separation of powers Parliament makes laws but those laws must be made within the boundaries laid down by the Constitution. The Constitution itself (sections 16 and 101) has placed the responsibility on the people and the judiciary to ensure that laws passed by Parliament do not exceed the constitutional boundary. The role of the people is to bring constitutional challenges before the courts and the role of the judiciary is to consider and rule on those challenges.
A matter for the court with appropriate deference to parliament
So at the end of the day, whether a law passes the test of reasonableness, and hence is within the limits set by the Constitution, is for the Court to decide.
However, in deference to the doctrine of separation of powers, the Court would allow for a “margin of appreciation” for the body charged by the Constitution with the responsibility to pass laws. This means that if the Court is not sure it would give the benefit of the doubt to the Parliament. Such margin of appreciation is more likely to manifest itself when issues of national security or other public interest issues are involved.
Conclusion
It is against the background of the above principles, I submit, that the provisions of the COVID 19 Bill should be examined. It is against the background of the above principles, I will in coming articles seek to assess some of the provisions of the COVID 19 Bill.