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COVID-19 Bill – An Impetus and Catalyst for Legal Reforms

Amidst vehement outcries from a broad cross section of the general public, including ‘unusually’ the legal fraternity and the youthful generation, the government of Prime Minister Keith Mitchell had been pressured to assemble in order to delay for “formal public consultation”, a controversial Coronavirus Disease (COVID-19) Control Bill, 2020 which was to be enacted ‘unexpectedly’ into law, so as to enter into force on 15 August, 2020.

The proposed law purports to “regulate the containment of the spread of the Coronavirus Disease (COVID-19) in the State of Grenada in the interests of public safety, public order, and public health and for the maintenance of a substantial portion of the community and supplies and services essential to the life of the community of the State of Grenada.”

The people however, raised strong objections to the ‘apparently disguised intent’, content and extent of the Bill, claiming that the Bill appears to be unwarranted, draconian, unconstitutional, bordering dictatorship, and unheard of in the Commonwealth of Nations.

There are individuals who also hold the view that the Bill is a reappearance of the offensive and unjust specifications of the government for the two closely consecutive constitutional referenda, since those desires were not realised with the dominating no-votes of the people and this angered the powers-that-be, but the Prime Minister boasted of still having all fifteen parliamentary seats.

In rousing debate on the announcement by the government in March 2013 for constitution reforms, an article “Constitutional Reform or Legislative Reform” pointed to the 2013 elections manifesto of Mitchell’s New National Party, in which constitutional and legal reforms were prominently highlighted within the context of his version of the building of a “New Economy”.

The establishment of a Law Reform Commission and a Select Committee of constitutional law experts and other experienced personnel to accomplish the reforms was mentioned in the manifesto, but the article also questioned whether or not those accomplishments would “waxed Political Power and entrenched Democratic Dictatorship”.

By March 2015, a committee was constituted to spearhead the historic constitutional referendum in November 2016 which resulted in a NO vote, and a similar committee was also not successful with another attempt to change the constitution in November 2018. On both occasions, the emphasis was on replacing the English Privy Council with the Caribbean Court of Justice as the last avenue for judicial recourse, but the people cited ‘ulterior motives’ on the part of the government, especially as affecting civil liberty and access to justice.

Although constitutional matters are indeed legal matters, and that some new laws were introduced and old laws were adjusted to improve “Doing Business” ranking, with the recipes of external agencies such as the International Monetary Fund in relation to a so-called Home-grown Structural Adjustment Programme, to date there has not been any serious efforts to undertake genuine comprehensive legal reforms in the interest of the masses. Instead; the justice system in Grenada has been allowed to be in a worsening and in a terrible ‘state of emergency’ resulting in much frustration for the legal profession and the general public.

As the 2013 article articulated, an attitude for legal reforms should take a broad view of the entire legal system which incorporates the laws and regulations, structures and institutions, procedures and executions, and the Ethics and Codes of Professional Conduct. The deficiencies and limitations, ineffectiveness and inefficiency and the irregularities and abnormalities which are prevalent in the system warrant confronting vigorously and meaningfully.

The administration of justice is filled with delays, outdated laws, obstructions and frustrations, insider-trading and cover-ups, and technicalities which render no ‘pride and joy’ for the ordinary man. Enforcement of laws as well as penalties for crimes is also in great lack.

It should be instructive to understand that not all laws are morally sound, especially since they are generally enacted with a political bias; however, all laws should foremost be conformed to the constitution as the supreme one (section 106 of the constitution).

Unfortunately, many laws are in existence for years and have been even applied in court cases, but they may be unconstitutional, at least with respect to a provision, and this sad situation remains until that provision is constitutionally challenged and declared null and void.

Further relevance for legal reforms is the need to clean the statute book so as to properly reflect valid Acts as much as is possible, with the repealing of ‘unconstitutional and undesirable’ ones and with the deactivating of those that are spent.

It is unscrupulous to have ‘invalid’ Acts on the books serving as red-herrings to trick, intimidate and confuse the ordinary people. There should not be any argument about the validity, application and relevance of laws which were passed before Grenada’s independence (‘colonial laws’), since these must be interpreted within the conformity-qualifications of the constitution (schedule 2 to the constitution).

Moreover, like international conventions which are signed onto, there are laws which are being enacted merely as a symbol and/or a prior-action for the government to obtain special recognition and favour, but which are dormant and useless because of having no operational framework and regulatory mechanism.

The revelations and tensions brought on by the COVID-19 Bill must not be seen due to an isolated ‘oversight’ case on the part of the government, but typical of policies and practices in relation to the rule of law and the delivery of justice. It must not be underrated that the administration of justice of all dimensions and disciplines is appalling and that the quest for justice and accountability is often times futile.

Laws have been passed and applied which are detrimental to certain sectors of the society; this includes the Pensions Disqualification Act and the Fiscal Responsibility Act. There continues to be maneuverings to place on the law books outrageous and outlandish laws, as well as to ignore court orders with impunity, at the expense of the people.

The strong show of people’s power on the Coronavirus Bill may be a signal of a determination to rescue Grenada from the abuse and the erosion of its democracy.

The major concerns and implications regarding the Bill should be viewed as setting the stage for a holistic approach for genuine legal reforms and thereby encouraging a turning point for Good Governance, failure to capitalise this ‘unmistakeable and unquestionable’ opportunity of the rallying of the people may never occur again in the near future.

All of the statutory provisions relating to the coronavirus pandemic and national elections need imperative attention in good faith, and those areas must be embraced at the start of the reforms immediately.

Pertinent laws such as the Emergency Powers Act 1987, the Public Health Act and the Quarantine Act, together with the Representation of the People Act must be reviewed and adapted within the parameters of public interest, social culture, democratic principles, constitutional conformity, and of course political reality.

Whilst the Bill is under microscopic examinations, the notices of the Parliamentary Elections Office need massive explanations; and in fact, democracy cannot be rescued ‘easily’ if the ‘most civil’ mechanism to ensure the security is open or is left unchecked.

Although the Emergency Powers Act has been relied on for the formulation and defense of the COVID-19 Bill, itself seems to be unconstitutional in certain respects. For example, is it not an anomaly to have any form of provisions to confer powers or functions on the Governor-General who is the local representative of Her Majesty, the Head of State and the Executive Authority?

There ought to be a ‘sharp and profound’ difference between the term conferring and the term advising; the legal connection and correctness between sections 57.3 and section 62.1 of the constitution must therefore be clarified.

It is ridiculous and unconstitutional and questionable for the Attorney-General, the chief legal advisor to the government, to contemplate and agree to section 3 of the Act, “The Governor-General shall exercise the powers conferred … in accordance with the advice of Cabinet”, and to duplicate and anchor substantially this ‘unsettled’ provision in the COVID-19 Bill as section 25; in seeking to satisfy the circumstances and processes for the declaration of a state of emergency (sections 17 and 18.2 of the constitution).

Whilst the people have excused the erroneous processes by which the state of emergency has been delivering since 25 March 2020, there is so much that can be tolerated without the necessary ‘pushing back’.

In any decision for reliance on the 1987 Act to serve as a generic legislation to guide the conduct and command of the government during a state of emergency, thorough consideration must first be given to the time of its enactment, the prevailing situation at that time, and the context and purpose of the enactment; as well as the feelings and reactions at that time on the Act.

Furthermore, it should be established as to whether or not this Act makes provisions for an ample range or category of emergencies, and/or that there exist ample functional regulations.

Particularly, the compelling reason for the total quashing of the COVID-19 Bill is the fact that the Bill does not tend to enact “measures that are reasonably justifiable for dealing with the situation that exists” during this current period of the public emergency (section 14 of the constitution) and so, the burden is on the government via its formal public consultation, to demonstrate how the clinical data including risk projections on the pandemic coincides with the constitutional provisions.

J.K Roberts

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