NASSAU, BAHAMAS — A well-known Queen’s Counsel says he plans to mount a legal challenge to the Emergency Powers (COVID-19) order imposed by Prime Minister Dr Hubert Minnis last week.
Wayne Munroe, QC, told Eyewitness News the order was ‘ultra vires’, adding businesses had very little time to prepare.
The Emergency Powers (COVID-19) Order, 2020, include a nightly curfew and shutdown of all non-essential businesses and organizations, public transportation and commercial sailing; and all events, parties or gatherings.
The curfew is in effect each night from 9pm to 5am, with exceptions to be approved by the commissioner of police.
The order took effect at 9am last Friday and will remain in effect until 9am on March 31.
The prime minister said the order will be lifted upon consultation with health officials.
Munroe said: “It’s not very well thought out. Very early on I have expressed that in my view the emergency regulations are ultra vires the Emergency Powers Act.
“That is a challenge that I will take up after this time has passed basically because you don’t want to add to the confusion. The Emergency Powers Act doesn’t authorize the making of emergency orders for public health reasons.
“There are other ways that you can abridge constitutional rights for public health reasons but they are not under the Emergency Powers Act. When you look at how they have done this order the government has decided it in its wisdom to act quite unilaterally in a lot of matters.
He added: “It has not put together a widespread task force where you can have consensus on such a touchy area.”
“None of the legal stuff was sent to the Bar Council for comment. I would have told them the regulations was ultra vires and will cost you a lot of money at the end of the day.
“The way to do it is to abridge constitutional rights under the abrogation clauses by legislation. You either pass legislation to amend the emergency powers act to permit the regulations for public health or you pass individual acts but that would call for debate and participation by other people.”
Munroe also contended that the order had created more problems.
“They still have a system that creates problems,” he continued.
“Closing food stores and gas stations early only tends to lead to longer lines. I can’t think of any logical reason to close food stores early or the curfew. If you shut the businesses down and more people are on the road in the daytime regardless then what is the point of the curfew.
“They have police riding around in buses closer than three feet together. I guess they can’t get the virus. I see press conferences where doctors are stressing the need for social distancing and they are standing in close proximity to each other.
“It just seems like a show,” he said.
“They gave businesses no time to plan for a very abrupt act. I have had to advise clients who are employers what to do with their staff. They aren’t terminating them, and can’t lay them off legally under the Employment Ammendment Act 2017 without some sort of consultation without engaging deep fines.
“If they can’t operate their business you basically have to furlough your employees for eleven days. We know that a lot of employees live hand to mouth and the government has no financial plan for them.
Munroe said: “They are not terminated and so they cannot seek unemployment benefit from NIB.”
The prime minister mandated that all establishments, institutions, businesses, offices, stores and organizations suspend operations to the general public except for the following: wholesale or retail grocery stores and farmers’ markets; doctors’ offices, hospitals or medical facilities; pharmacies; gas stations; medical supply establishments; hotels; banks; commercial ports and related businesses; airports; laundromats; drive thru or take away food vendors, and construction companies.
Subject to that order, all other establishments, institutions, businesses or offices inclusive of the public service, as may be authorized by the respective permanent secretary, shall work from home and such establishments, institutions, businesses or offices shall maintain only essential staff for the performance of core functions while adhering at all times to social distancing as prescribed above.