Fidelity to the Constitution – even in a crisis
RESPONDING TO the insistence of his potential son-in-law that he should use his office of state to unlawfully arrest someone, Sir Thomas Moore, in whose mouth Robert Bolt, in the play A Man for All Seasons, placed the some fine words, observed thus: “Yes, I’d give the devil benefit of law, for my own safety sake”.
Most recently I reflected on this passage, as I contemplated what exactly was going through the mind of Dr Horace Chang, minister of national security, when he was first told that the captain of the Marella 2 (a ship) was requesting permission to enter Jamaica’s internal waters for the purpose of allowing 42 Jamaican nationals to disembark.
They were denied access to their own country, and I have heard many who have said in effect that this was the correct decision, and the host of a morning radio programme has sought to suggest that the parliamentary Opposition should have been careful in calling for the borders to be closed. Those in support of the act of great national shame advance a sort of Darwinian if not Hobbesian logic which goes something like this: the 2.5 million Jamaicans must be saved, so do not allow other Jamaicans in, as those on the outside are likely to be carriers of the COVID-19 virus. Why risk the 2.5 million with another 42 at a time like this? A most seductive argument at first blush, but not one that can withstand serious interrogation. It succeeds only if we abandon our commitment to the Constitution, which it appears that the Jamaican State did on that occasion.
LIMITING RIGHTS
I hold the view that the complete closure of our borders to nationals as a means of protecting the nation was never necessary, or reasonably justifiable. I also submit that the orders that were put in place, to achieve that objective, are unlawful to the extent that they exclude Jamaican nationals.
To get off the ground, I accept that the Government does have a legitimate reason to seek to protect the lives of its citizens, as we are facing a virus that can overwhelm us and cripple our economy and health service. I do not need to rehearse the local or international figures, but as we were recently reminded by the Supreme Court in Julian Robinson v Attorney General (the NIDS judgement), identifying the objective that we are seeking to achieve is just the starting point in the actual analysis that is required to engage the process of legally encroaching on the right of the Jamaican national to enter his/her land of birth. Should we stop at the stage of looking only at the objective that the State is pursuing, believe it or not, most infringements of our civil rights would be held by the court to be in keeping with the Constitution. It is for this reason why the Supreme Court, at paragraph 86, made the point that today a rights-limiting measure must pass the test of proportionality. In shutting down the argument that was advanced by the attorney general, the court defined proportionality in the following clear terms: “It is the legal doctrine of constitutional adjudication that states that all laws which impact a constitutional right ought to go no further than is necessary to achieve the objective in view.”
Of course, this does not create for the State a situation where it can never encroach a person’s right, but what it does is to say to the State: do not use methods beyond those which are necessary. In this regard, the attorney general, as someone who was involved in the NIDS challenge, was obliged to consider the available armoury in the nation’s legislative store. What comes to mind, without question, are the provisions of the Quarantine (Maritime) Regulations, which in clear language sets out a practical way forward which, if applied, does support the point being made that it was disproportionate to have closed the borders to Jamaican nationals. What the regulation instructs Jamaica to do (among other things) – and this can be tailored, I would say, to aircrafts – is to ascertain from the ship’s captain whether there was a history of infectious disease on-board, and equally it gives the State the power to set up isolation centres. Why was this not done before reaching for the blanket and disproportionate measure of closing the border to Jamaicans? This is a question that I am sure that those 42 Jamaicans would tender not just to the prime minister, but to every single member of the Cabinet who signed off on this act of cutting down the law, apparently to save us from the virus.
ROAD AHEAD
The prime minister and the minister of foreign affairs (a silent Dr Chang avoids this issue) hopefully, having untangled themselves from the divergent statements that they gave on this issue, will be leading the Cabinet in drafting the policies that will be applied as Jamaica reopens its borders to welcome Jamaica nationals. It might be prudent to actually have the minister of foreign affairs liaise with her counterparts in Singapore, New Zealand and Nigeria. These countries have used, or are using, isolation centres for their nationals who have arrived/returned, and to date we have not heard of any horror stories. The minister of tourism and the minister of agriculture can use their influence to actually ensure that persons are not placed in conditions that are inhumane and that they have meals.
Mr Holness is rightfully concerned about the actual costs to the State, and I would suggest that it issues, through the Ministry of National Security, a travel advisory to Jamaicans who are not habitually resident in Jamaica not to book any flights to Jamaica at this time, especially those residing on the following continents: Europe, North America, Asia, and Australasia. There is much that can be achieved via gentle dissuading persons from travel, or alternatively, the Government could lawfully impose a prohibitive landing tax at this time, which potentially can be held to be proportionate, as opposed to an all-out ban.
The Attorney General Marlene Malahoo Forte should not stand idly while the prime minister, in his quest to protect the citizens of Jamaica, tangles himself in the proportionality terrain or in hardto-believe explanations. It is her job to provide the Government with sound, non-partisan advice, with no eye on political factors or while ignoring those whose fear of the virus has crippled their capacity to think. This is one of those moments, Madam Attorney General, when fidelity to the Constitution is needed, as we are in a true crisis.