Knowledge…Shared…Multiplies
This is the last in the three part series of articles on the Covid 19 Bill. In the previous article, I argued that the Covid 19 Bill suffers from the defect of overreach; that there is serious overreach of the power to arrest without warrant in relation to the legitimate objective of fighting Covid 19; and that there is also serious overreach of the power of entry on private property without warrant in relation to the legitimate objective of fighting Covid 19.
I focused on section 4 of the Bill. Section 4 states that a person commits an offence if he or she is outside his or her place of residence without wearing a mask.
Fundamental Problem
I submit that the fundamental problem with the Bill lies in section 18 and that this problem infects the entire Bill. Section 18 provides that:
A person who contravenes or fails to comply with this Act commits an offence and is liable on summary conviction to a fine not exceeding twenty-five thousand dollars and to imprisonment for a term not exceeding twelve months and to forfeiture of any goods or money in respect of which the offence has been committed.
What section 18 does is to create one shoe size to fit every foot. It criminalizes every contravention and every failure to comply with the Act. And it makes a person liable to lose their liberty or suffer a fine for any infraction.
The defect in section 18 is compounded by the fact that section 24 of the Bill confers on the police the power of arrest without warrant and the power to enter private property without warrant. This is further compounded by the fact that these awesome powers are conferred on every police officer, from constable to commissioner.
As I sought to demonstrate in the previous article, based on how the Bill is presently drafted, these wide powers of arrest and entry on private property without warrant far exceed what is reasonably required by the legitimate objective of fighting Covid 19.
Regulate or Punish
Another example of overreach complained of is providing for offences punishable by imprisonment where the purpose is clearly to regulate and not to punish.
Take section 6 of the Bill for example. This section provides:
(1) Every business, establishment or office shall—
(a) ensure that all customers and staff maintain physical distancing of no less than six feet (6ft.) in or outside their business, establishment or office;
(b) determine the number of persons that may be permitted in the business, establishment or office at any one time by permitting one person for every thirty square feet (30 sq ft) of store space;
(c) place prominent distance markers six feet (6ft.) apart, indicating where each customer must stand on a line at a checkout point; and
(d) place distance markers six feet (6ft.) apart on the outside of the business, establishment or office, indicating where customers must stand while waiting to enter the business, establishment or office.
(2) Every business, establishment or office, including operators of motor omnibuses, hiring cars and taxis, shall administer or ensure sanitisation of the hands of every person upon entry into the establishment or business.
(3) If the manager, owner, other person in charge or employee of any business, establishment or office, aids, abets or facilitates the contravention of this Act, the Minister may order the immediate closure of the business, establishment or office for a specified period not exceeding three months, without prejudice to any other penalty in law.
Section 6 is clearly geared towards getting businesses to comply with physical distancing and related provisions. This is a legitimate objective. The power of the Minister to shut down a business for a period of three months is an intrusion on the liberty of a business owner to use his property. One may argue that the power is excessive and that there should be safeguards in place, such as a review by a judicial officer within a short period of the shutdown order. However, in the context of the Bill, the power to shut down a business for noncompliance with social distancing protocols seems rationally linked to the legitimate objective of fighting the pandemic.
But, in addition to the sanction of shut down, noncompliance under section 6 is also an offence under section 18 for which a person can be arrested without warrant due to the power given to police officers under section 24(3) of the Bill.
It may be arguable that certain acts of noncompliance with social distancing protocols could be so outrageous that it would be justifiable to criminalize them; but the degree of outrageousness which attracts criminal liability should be carefully set out.
However, as presently written, the Bill authorizes a business owner who is complicit in any degree of noncompliance with social distancing protocols to be arrested without warrant. There is arguably no rational link between fighting Covid 19 and a business owner being liable to arrest, without warrant, by an overzealous constable of police, three months after allegedly committing
the offence of being complicit in the noncompliance with a social distancing protocol at his or her business place. It is an overreach.
Section 27 of the Bill
Section 27 of the Bill is another section which has raised concern. Section 27 provides:
(1) The Minister may make Regulations for the purposes of giving effect to the provisions of this Act.
(2) Regulations made under this Act, including regulations made under section 26 (4), may provide for the creation of offences and the imposition by a court of summary jurisdiction of a fine not exceeding twenty-five thousand dollars or imprisonment not exceeding twelve months or both, upon conviction of an offence under the regulations.
From a jurisprudential standpoint, the fact that an offence is created by a Minister (exercising the power to make Regulations) does not in and of itself make it unlawful. It is now widely accepted that Parliament can delegate law making powers to members of the executive. Executive made laws are referred to as subsidiary legislation or regulations. They would only be unlawful if the Minister to whom Parliament gives the authority to make subsidiary legislation (regulations) exceeds the authority.
However, despite its general acceptance the reality is that executive created laws represents a dilution of the separation of powers between Parliament and the Executive. Remember, under the separation of powers parliament makes laws and the executive administers the affairs of the state within the bounds of the laws made by parliament. Because of the concern about the blurring of the roles between parliament and the executive connected with executive made laws, various devices are used as a safeguard and to maintain some parliamentary oversight. So for example, in some cases, a law authorizing a minister to make subsidiary legislation may require such subsidiary legislation (regulations) to be laid before the parliament so that parliament is fully aware of how the power is being used and can intervene if necessary.
Interestingly, section 4(1) and 4(2) of the Quarantine Act which goes back to 1947 confers the power on the Minister to make regulations but section 4 (3) states that
Regulations made under subsection (1) shall not have any force or effect until confirmed by resolution of the House of Representatives. In confirming any regulations, the House of Representatives may make any amendments thereto which it may deem desirable.
This is an example of the Minister being granted the power to make regulations but parliament, as the body constitutionally charged with the responsibility to make laws, retaining an element of control. And there are other devices. It may be a good practice where subsidiary legislation affecting fundamental rights are made for some form of parliamentary oversight which could then facilitate public involvement before the law takes effect.
It was there long: that does not make it lawful
The argument has been made that several of the provisions in the Covid 19 Bill now being objected to are to be found in legislation going back decades. That is true. Hence the Quarantine Act which as stated above goes back to 1947 provides that
(1) It shall be the duty of every member of the Police Force to enforce (using force if necessary) compliance with this Act and with any order, instruction or condition lawfully made, given or imposed by any officer or other person under the authority of this Act; and for such purpose any member of the Police Force may board any ship or aircraft and may enter any premises without a warrant.
(2) Any member of the Police Force may arrest without a warrant any person whom he or she has reasonable cause to believe has committed an offence against this Act.
It’s clear that section 24 of the Covid 19 Bill was lifted from the 1947 Act.
In the immediate post-independence period in the Caribbean (1962-1974) it was often argued and accepted by the courts that the constitutions of the newly independent Caribbean states (Jamaica, Trinidad & Tobago, Guyana, Barbados, Bahamas) did not extend on known fundamental rights or create new ones; that they simply put in one document the rights which already existed under the colonial legal system.
However, the basis for that conservative approach started to change with the advent of the Grenada Constitution in 1974. Grenada’s was the first constitution of the newly independent states which had a clause empowering the courts to modify colonial laws to bring them in line with the constitution where an inconsistency was detected between the constitution and a colonial law. . Hence Schedule 2 to the Grenada Constitution Order states:
The existing laws shall, as from the commencement of the Constitution, be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Constitution and the Courts Order.
This clause was interpreted as recognizing that our constitutions may create new fundamental rights or extend on existing ones. It opened the way to new thinking by our courts. It led to a more liberal and progressive approach to interpreting our constitutions. The conservative approach of looking at colonial era legislation to determine what rights exist under the constitution has been, in the main, replaced by the philosophy which holds that a constitution is a living organism; that it must be interpreted in keeping with the times even while be faithful to the language used in it.
Consequently, the fact that a provision in a law existed for a long time, from since the colonial era, is no guarantee that it would be held to be lawful if challenged. Its lawfulness has to be judged against the standards and values set out in the constitution and in the context of the modern era.
Today more than any time in our history a very high value is placed on individual rights and freedoms. The making of laws to govern us, both in terms of the contents of those laws and the process by which they are made, is now impacted by the speed with which information, including misinformation makes the rounds.
I submit that the overreach in the Covid 19 Bill, some of which have been highlighted in this series of articles, created fertile ground for suspicion that government was seeking to use the coronavirus pandemic as an excuse to erode individual rights. I leave the rest of the analysis for political scientists and political commentators.