Emergencies and power

A state of emergency is not merely about curfew and business hours, and how many people can gather on a beach.

It enables the government to restrict your movement, expression, association and access to facilities; to take control of your property or business; to engage foreign military to enforce its emergency orders; and to suspend existing laws.

Though they enable governments to respond to emergencies more quickly than would be possible by the ordinary legislative processes, emergency powers in modern constitutional democracies are generally viewed as acceptable only when used as a last resort for a widely recognized emergency, and when those powers terminate as quickly as possible.

Bahamians accepted the use of these powers at the onset of the country’s COVID-19 response, reasoning that the government’s position on the need for extraordinary measures to adequately protect the country from the threat of the pandemic, was sound.

But what we are seeing in The Bahamas and countries in the English-speaking Caribbean where COVID-19 has been deemed contained, is a prolonging of states of emergency that is being met with a rising tide of opposition from the citizenry, which is voicing dissent against repeated extensions of emergency orders.

Unlike these Caribbean countries, the Cabinet of The Bahamas has ceded its collective responsibility to govern during a state of emergency to the rule of a single member – the prime minister.

It is useful to appreciate that the European concept of emergency powers handed down to and adopted by former colonies in the region, has its roots in the Roman Republic wherein the legislature would cede its power to a dictator most often during times of war.

Indeed, the constitutions of these former colonies, together with Emergency Powers legislation dating back to the 1930s, cite war as the primary justification for a proclamation of emergency.

Understanding the import of history, observers around the world quickly expressed concern with the terminology of “war” used to describe the fight against COVID-19, viewing the narrative as a signal to governments to switch to the execution of emergency rule over their citizens as an option of first resort.

Since emergency powers have not been used in living memory in The Bahamas, the present state of emergency is a foreign concept to the public, many of whom easily dismiss its importance so long as their personal desires are not interrupted.

Due to the novelty of emergency rule and a general lack of knowledge about one’s system of government, many Bahamians are unable to appreciate how the kind of power held by the government during a state of emergency is different from the kind of power they believe the government ordinarily has.

This is why prolonging a state of emergency when an emergency is not widely recognized to exist, and doing so when adequate responses can be carried out by ordinary legislation, sets a dangerous precedent for The Bahamas.

Bahamians who underestimate the significance of a state of emergency can become conditioned by prolonged emergency rule to develop comfort with their fundamental rights being restricted though the emergency for which the emergency state was instituted, is no longer evident.

This comfort can make it easier for future prime ministers to seek to execute states of emergency, and thereby suppress the rights of citizenry for ordinary circumstances they insist are extraordinary for the country.

The competent authority, Prime Minister Dr. Hubert Minnis, has declared that community spread of COVID-19 in The Bahamas has been contained.

The country has reopened, there are no hospitalizations for COVID-19 cases and only four active cases exist.

It is noteworthy, therefore, that the government advised the governor general to sign a new proclamation of emergency declaring that the mere presence of COVID-19 in The Bahamas constitutes an emergency.

Since infectious disease experts say COVID-19, like other viruses, may be with us forever even if a vaccine is produced, the government’s position that the virus’ presence is enough to warrant the ongoing suppression of rights and freedoms, is a clear indication of its unwillingness to relinquish its sweeping control over the Bahamian people.

Even if the competent authority lifts the nightly curfew and relaxes other restrictions, he can change these orders at any time he wishes, because he will still hold broad emergency powers that he can call on at a time of his choosing, and his choosing alone.

If not quashed on court challenge or blocked by legislature, the latter of which being unlikely given the government’s super majority in the Parliament, his emergency powers can last on extension until the end of 2020.

The other side of the coin

It is the Bahamian people who are to be chiefly credited with the country’s arresting of the spread of COVID-19, and their cooperation with emergency orders has, according to the country’s health professionals, proven key to stemming the tide of new infections.

What this suggests is the public is willing and capable of taking measures to protect themselves and others without the looming arm of force, suppression and potential imprisonment.

But account should be taken of the losses as well as the gains of the COVID-19 response.

In his recent budget debate contribution to Parliament, National Security Minister Marvin Dames advised that 1,134 persons had been arrested and charged with curfew violations.

Consider the number of people convicted who now have a mark on their record, and how this might impact their ability to retain or secure employment in a job market upended by COVID-19’s impact.

Some of those arrested and charged were homeless or suffering from mental defect, while many others claimed to have been away from their homes due to needs for food, water, medicine and to assist elderly parents and relatives.

Mandatory liabilities imposed by the competent authority’s curfew orders left law enforcement and judges without discretion in circumstances where a warning rather than arrest and criminal conviction would have been the appropriate course of action.

Calls to amend the mandatory liabilities went unheeded by Minnis, and in so doing, many vulnerable and low-income Bahamians and residents have now been criminalized for seeing to their own emergencies in the midst of emergency orders.

Initial regulations regarding “fake news” were amended only after the opposition pointed out that its wording would have empowered the competent authority to arbitrarily suppress expressions by the general public.

Bahamians standing peacefully on long lines for assistance have been guarded by law enforcement brandishing weapons, ratcheting up an atmosphere of force, control and fear as if the enemy was not COVID-19, but rather the Bahamian people.

Public addresses by the prime minister are repeatedly laced with condescending warnings to the public as though they are children unable to function as necessary without the competent authority’s edicts.

As such, while we have gained control of COVID-19’s spread, what we are at risk of losing is an essential sense that the Bahamian people have within them the power and ability to ensure and advance their own well-being.

When a citizen loses confidence in his or her role in a democracy, it becomes that much easier to convince him or her of the need for the government to increase its control under the guise of the greater good.

Legitimacy of emergency regulations

The constitutionality of the governor general’s new emergency proclamation is expected to undergo court challenge.

Meanwhile, questions in some quarters have also arisen as to whether the emergency regulations arising from the previous and current emergency proclamations were properly put into force.

When the governor general issues an emergency proclamation, it is in effect for 14 days unless earlier revoked by the legislature, and can be extended for no more than six months with the consent of both houses of Parliament.

Section 5(2) of the Emergency Powers Act states: No emergency regulations shall have effect — (a) during a period when a proclamation of emergency is in force by virtue of having been approved by a resolution of each House of Parliament under the constitution; or (b) during a period when a proclamation of emergency is in force by virtue of having been extended by a resolution of each House of Parliament under the constitution, unless each House of Parliament has, by a like resolution in such case, affirmed that those regulations shall have effect during that period.

Section 3 of the act empowers the governor general to make such regulations under an emergency proclamation, and Section 3(3) empowers authorities or persons to issue orders or rules under those regulations.

Given that a resolution of Parliament was not passed with the initial emergency proclamations and regulations issued in March and on June 29, Perspective questioned Attorney General Carl Bethel on whether the same had been put into force according to law.

Bethel declined comment on our questions.

Opposition Leader Philip Brave Davis opined to us that though Section 5 appears to require a resolution for the proclamation and regulations for the first 14-day period, the same would only be required when the government seeks an extension of a state of emergency.

But he also acknowledged that “two schools of thought” do exist on the matter.

Attorney Alfred Sears, QC, offered another opinion in response to questions put to him by Perspective last week, positing that the question is whether The Bahamas is dealing with a new public emergency or a continuation of the public emergency that was declared on March 17.

He argued, “If the ‘new’ June 29 proclamation of emergency and regulations are, in effect, merely a continuation of the same COVID-19 public emergency that was declared on March 17, 2020, should they not be subject to the strict requirement of section 5 of the Emergency Powers Act which mandates prior parliamentary approval of any emergency regulations, or should the government be allowed a fresh 14 days of emergency powers without parliamentary consent?

“The appropriate answer, in my view, is for the government to seek the approval of Parliament for the continuation of the emergency regime by way of a resolution before both the House of Assembly and the Senate, consistent with the government’s intention contained in the resolution tabled in the House of Assembly on June 29, 2020 and section 5 of the Emergency Powers Act.

“This course of action will preserve the spirit of Article 29 of the constitution, the Emergency Powers Act, ensure parliamentary oversight and maintain public confidence.”

Existing legislation

New Zealand Law Commission’s Final Report on Emergencies categorizes an emergency as that which the state is unable to respond to through its existing legislation.

It is our view that the government does not need a new state of emergency to carry out its safety initiatives at this stage of the COVID-19 response, as those initiatives can be carried out through existing legislation.

The Health Services Act, for example, empowers the chief medical officer and other authorities to act in relation to the notification of infectious disease, isolation of infected persons and the entry of premises to carry out functions under the act.

And the Quarantine Act provides the necessary legislative framework, together with amendments deemed suitable for responses necessary for COVID-19, to enable the government to continue to provide for the safety of the public.

Davis also questioned why both pieces of legislation cannot be deemed sufficient for the government’s public safety purposes at this stage, as opposed to a “draconian proclamation of emergency”.

Other restrictions such as social distancing, curfews and the wearing of masks can be legislated, and can be enacted with sunset clauses which cause such provisions to cease to have effect after a specified time.

Legislation, by virtue of its process, is less vulnerable to misuse than are the broad provisions of emergency orders, and executive accountability to the Parliament is the constitutional order of The Bahamas — an order that is being unjustifiably stayed by continuing a state of emergency for a COVID-19 outbreak that has been under control for some time now.

Once we emerge from a state of emergency, the Emergency Powers Act — which makes no mention of a competent authority — should be amended to specifically designate the Cabinet as the authority empowered to make orders and rules under emergency regulations.

To our discussion on legislative oversight of executive power under states of emergency, Sears contemplated, “Should not the period for legislative oversight of a proclamation of public emergency be less than 14 days, perhaps it should be reduced to 24 hours, like Fiji, or five days like Romania, or seven days like Namibia?

“Should not parliamentary extensions of a proclamation of public emergency require a parliamentary super majority vote, after the first extension, like South Africa where extensions require a 3/5 majority, or Kenya where extensions require a 4/5 majority, or like Trinidad & Tobago where extensions after 60 days require a 3/5 majority?”

The present emergency

The scenario of one-man rule is one the Cabinet of The Bahamas should never have assented to, and one the Parliament, when called upon, should not permit to continue.

The initial emergency of COVID-19 has given way to the present emergency of a government seemingly unwilling to rein in a fixation with holding on to emergency power, when the competent authority’s own proclamations regarding the activity of COVID-19 in The Bahamas indicate that the emergency has passed.

The present emergency is the narrative that the Bahamian people must be made to do by force and threats, what most are able and willing to do by persuasion that is undergirded by facts and evidence.

It only takes the response to one event — in this case COVID-19 — to begin to beguile the public into believing that extraordinary powers should be embraced as an ordinary function of their democracy.

The opposition, which has sought to support the government’s overall objectives of COVID-19 mitigation to date, must find its clear voice on the government’s unreasonable suppression of the fundamental rights and freedoms of the Bahamian people at this stage of the COVID-19 response, else it leaves itself open to suspicion that it may wish to find safety in following suit on its watch.

Based on the data provided by health officials, the COVID-19 outbreak in our country is contained.

It is now time to contain the perpetual grasp for power and control emanating from the COVID-19 response.

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