Lord, what are we going to do?
Today we have had an exponential rise in cases and if this continues, our medical capacity will be exhausted and we will all be in trouble!
The message regarding the seriousness of the situation and the absolute necessity for everyone to adhere to the protocols put in place for our protection is being garbled and diluted by people waving the constitution and wrongly proclaiming the unconstitutionality of lockdowns, curfews and quarantine during a state of public emergency.
Moreover, if the science warrants a lockdown, and in my view it does, there should be a full and complete lockdown for a week with no businesses open, and a partial lockdown the week after, only allowing for food store and pharmacy runs!
When businesses other than for the purchase of the most essential items, namely food, water and medicines, are permitted to open, it encourages people to go out; and really what should be a full lockdown becomes a partial lockdown which greatly exposes people to risk of infection.
People are flagrantly flaunting the lockdowns because they perceive them not to be serious. Further, there is little to no enforcement of the provisions, and people are merrily moving around spreading the virus. The more lukewarm we are in our response, the more the virus will spread and the longer we will be in this state.
As to the constitutionality of the regulations, orders and protocols, the framers of the constitution anticipated there would be times of emergency when some of our constitutional rights and freedoms would have to be curtailed in the public’s interest and for the public’s safety.
In this regard, Article 29 provides, “Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of Article 19, any provision of Article 20 other than paragraph (4) thereof, or any provision of Articles 21 through 26 (inclusive) of this constitution to the extent that the law in question makes in relation to any period to which this article applies, provision, or 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.”
Further, the governor general is authorized to make regulations by section three of the Emergency Powers Act, for the purpose of securing the public safety during an emergency, and is authorized to delegate to authorities or persons, the power to make rules and orders for any of the purposes for which the regulations are authorized to be made.
Regulations authorized to be made for the purpose of dealing with emergencies may provide: for the detention of persons; restriction on their movements; and for the apprehension, trial and punishment of persons who offend against the regulations.
Consequently, subject to Article 29, and section three, laws may be made in an emergency which curtail, for example: our right not to be arbitrarily arrested or detained; our right to the protection of the law except that provision of Article 20(4) which expressly prohibits the conviction of any act or omission which was not an offence at the time it was done; our right to the privacy of our home and property; our freedom of conscience, including freedom of religion, including our right to manifest our religion in worship, practice and observance; our freedom of expression; freedom of assembly and association; freedom of movement; and freedom from discrimination.
It is therefore lawful to lock us down, impose curfews, quarantines, requirements to shelter in place and wear masks when we go out and to impose penalties for non-compliance, provided such acts are unlawful at the time they were committed.
The only requirement for the constitutionality of such provisions made under Article 29, is that they are reasonably justifiable in the circumstances of the public emergency for the purpose of dealing with the situation.
People, let’s get serious. Let’s take responsibility for our health and that of others!
— Dame Anita Allen