Sears: COVID-19 emergency laws need public safeguards

Sears: COVID-19 emergency laws need public safeguards

QC commends govt. on emergency legislation package amid health threat, but says Bahamas should learn from Jamaica

NASSAU, BAHAMAS — While commending the government for bringing the necessary package of emergency legislation to deal with the COVID-19 pandemic, former Attorney General Alfred Sears, QC, said it is misguided to make the prime minister the competent authority during a period of public emergency.

Sears recommended the establishment of a Tribunal for review of cases of detention, restriction and requisition of private property — all of which can be done during a state of public emergency — to deal with challenges and review of these matters and safeguard the public, particularly from political persecution.

“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,” Sears said.

“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.”

Prime Minister Dr Hubert Minnis laid the Emergency Powers (COVID-19) Regulations, 2020, in Parliament today, allowing for wide-sweeping powers to allow for mandatory detention, isolation, and curfew; requisition of any building, ship or aircraft; and criminalizes the posting or sharing of “fake news”.

Minnis said: “Those against these measures are not interested in lives or their country.”

The special restrictions for isolation are contingent on the incidence or transmission of COVID-19 being a serious and imminent public health threat, according to the regulations.

Three cases of COVID-19 have been confirmed in The Bahamas.

In his statement, Sears acknowledged the COVID-19 pandemic threatens the health, safety and economic stability of The Bahamas and the global community.

He said the threat requires the nation to take extraordinary measures to restrict entry, containment of the spread of the virus, effective and humane treatment of infected persons and to mitigate the effects of the disruption on vulnerable people, communities and businesses in The Bahamas.

The Queen’s Counsel referenced Article 29 of the constitution, which authorizes Parliament to approve a proclamation of emergency, which suspends certain fundamental rights where it is “reasonably justifiable in the circumstances”.

Sears also underscored the Emergency Powers Act, which mandates that when the governor general makes a proclamation of emergency he may make regulations that he deems necessary to secure the public safety, the defense of The Bahamas; maintain public order and the suppression of mutiny, rebellion and riot, as well as for maintaining supplies and essential services to life and well-being.

The former attorney general said there is need for due process provisions in the draft regulations given the suspension of fundamental rights, including the right against arbitrary arrest and to take property, for 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 guide of public safety, subversion and fight against crime, which resulted in a commission on inquiry being appointed,” Sears continued.

“Therefore, the Jamaican Emergency Powers Regulation, 2018, at section 38, contains an important safeguard which is the establishment of Tribunal for review of cases of detention or restriction.

The body was named the Emergency Powers Review Tribunal and consisted on a chief justice of Jamaica and two people appointed by the governor general.

Sears said The Bahamas should learn from Jamaica’s experience and put the necessary safeguards against abuse in place.

Under the Emergency Powers (COVID-19) Regulations, 2020, the competent authority is defined as the prime minister.

Sears pointed out that section 3 of the regulations provides for the governor general to “make such regulations as appear to him to be necessary or expedient for securing the public safety”.

He said the governor general in this context is acting under the direction of the Cabinet, and therefore the exercise of extraordinary powers granted under the regulation should be exercisable by the Cabinet and the relevant public health authorities.

The attorney said there is no reference in the definition of the competent authority to the governor general, the Cabinet, the minister of national security, the commissioner of police, the commodore of the defense force, the director of public health or the Public Hospitals Authority.

He said: “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.”