Emergency powers regulations should contain provisions to prevent abuse
Having reviewed the draft Proclamation of Emergency, Emergency Powers (COVID 19) Regulations, 2020 and the final resolution, I make the following observations and comments, subject to further to review.
The COVID-19 pandemic threatens the health, safety and economic stability of the world and requires that The Bahamas takes extraordinary measures to restrict entry, contain the spread of the virus, provide effective and humane treatment of infected persons and mitigation of the effects of the disruption on vulnerable persons, communities, businesses and the country.
The constitution, in Article 29, authorizes the House of Assembly and the Senate to approve a “proclamation of emergency”, which suspends the fundamental rights under the constitution, and “authorizes the doing during any such period of anything which is reasonably justifiable in the circumstances of any situation or existing during that period for the purpose of dealing with that situation”.
The Emergency Powers Act, 1974, provides, at section 3, that when a proclamation of emergency is made the governor general may make “such regulations as appear to him to be necessary or expedient for securing the public safety, the defense of The Bahamas, the maintenance of public order and the suppression of mutiny, rebellion and riot and for maintaining supplies and services essential to life and well-being of the community”.
After a quick review of the drafts which were tabled in the House of Assembly yesterday, I offer the following comments:
Need for due process safeguards
1. There is no provision in the draft regulations, given the suspension of the fundamental rights including the right against arbitrary arrest and to take property summarily, for any challenge and review.
We can learn from the experience in Jamaica during its public emergency declaration in 1976 which resulted in allegations of political persecution under the guise of public safety, subversion and fight against crime which resulted in a commission of inquiry being appointed.
Therefore, the Jamaican Emergency Powers Regulations, 2018, at section 38, contain an important safeguard which is the establishment of a tribunal for review of cases of detention or restriction.
“38(1) For the purpose of these regulations, there shall be established a tribunal for the review of cases of detention or restriction to be called the Emergency Powers Review Tribunal.
2) The tribunal shall consist of —
(a) one member appointed by the chief justice of Jamaica from among persons qualified to be appointed as a judge of the Supreme Court, who shall be chairman of the tribunal; and
(b) two other persons appointed by the governor general.
(3) In the case of the temporary absence or inability to act of —
(a) the chairman of the tribunal, the chief justice may appoint another person from among persons qualified as specified in paragraph (1)
(a) to act as chairman of the tribunal;
(b) any other member of the tribunal the governor general may appoint another person to act for that member.
( 4) The appointment of any person as a member of the tribunal shall be for such term and shall be subject to such conditions as may be determined by the chief justice or the governor general, as the case may require, and a person who ceases to hold office as a member of the tribunal shall be eligible for re-appointment thereto.
(5) Subject to section 13(10) and (11) of the Constitution of Jamaica and to the provisions of this regulation the tribunal may regulate its own proceedings.
(6) Any person against whom an order is made under regulation 22, 32 or 33 of these regulations may make objection against the order to the tribunal aforesaid.
(7) Any meeting of the tribunal held to consider any such objection as aforesaid shall be presided over by the chairman and it shall be the duty of the chairman to inform the objector of the grounds on which the order has been made against him and to furnish him with such particulars as are in the opinion of the chairman, sufficient to enable the objector to present his case.
(8) The chairman shall report to the minister the findings of the tribunal on every such objection, including therein (in the case of an order under regulation 32 or 33) any recommendations concerning the necessity or expediency of continuing the detention.
(9) The minister may, having regard to the findings of the tribunal and the public interest in preserving public safety and public order —
(a) in the case of an order under regulation 22 direct the competent authority to review its decision;
(b) in the case of an order under regulation 32 or 33 —
(i) direct that the order remains in force;
(ii) vary the order (including imposing conditions thereunder); or
(iii) revoke the order.
(11) Any order made under regulation 22, 32, or 33 of these regulations shall be accompanied by a notice informing the person against whom the order is made of —
(a) the grounds on which such order was made; and
(b) his right to make his objections to the tribunal aforesaid.
(12) The minister shall as soon as practicable after an order is made under regulation 22, 32, or 33 of these regulations furnish the person against whom such order was made with the necessary particulars to enable him to present his case to the tribunal.”
We should learn from this experience and put in place the necessary safeguard against abuse.
2. Under the Emergency Powers (COVID 19) Regulations, 2020, at section 2, competent authority is defined as the prime minister.
However, section 3 of the Emergency Powers Act provides that the governor general “may make such regulations as appear to him to be necessary or expedient for securing the public safety . . .”
The governor general, in this context, is acting under the direction of the Cabinet, pursuant to Article 79 of the constitution.
Therefore, the exercise of the extraordinary powers granted under the proposed Emergency Powers Regulations should be exercisable by the Cabinet and the relevant public health authorities. The Jamaican Emergency Powers Regulations, 2018 Competent Authority defines competent authority as follows:
(a) In relation to all the provisions of these regulations that confer any powers upon a competent authority, means the governor general, the minister responsible for national security, the chief of Defense staff, the commissioner of police, each deputy commissioner of police or the senior officer of police in each parish; and
(b) In relation to any particular regulation which confers any power upon any competent authority, means such person as may be appointed by the governor general as the competent authority for the purposes of such regulation.
There is no reference in the definition of “competent authority” to the governor general, Cabinet, minister of health, minister of national security, commissioner of police, commodore of defense force, director of public health, Public Hospitals Authority.
These public offices and public authorities, under the constitution, are not subsumed under the Office of the Prime Minister.
Rather, it is the Cabinet, pursuant to Article 72 of the constitution, which has the general direction and control of the government and is collectively responsible therefore to Parliament.
While I commend the government for bringing this necessary package of emergency legislation to deal with this pandemic, it is misguided to make the prime minister the sole competent authority during this period of public emergency.
COVID-19 is a public health threat to The Bahamian; therefore, the public health officials should be empowered to make evidence-based public health decisions under the general direction of the Cabinet.
I therefore urge the House of Assembly and the Senate to consider these recommendations to ensure maximum public confidence as we work together to protect, secure and ensure the health, stability and future of The Bahamas.
– Alfred M. Sears, QC