Of Law and Social Responsibility

I find myself more frequently using politically correct phrases (though I despise the term itself). Perhaps, it is fortunate that ‘political correctness’ was foisted on our language since the alternative is that we would have to resort to using ‘two bad wud’ in many situations.
This past week may end up being my most personal politically correct week of my entire life.
When the Health Minister jumped in the brew of the sterile and possibly utterly useless (in social terms) debate and declared the choice is “Rights or Death”, it is ‘a binary choice’, I had to shout within ‘how unfortunate’.
There is NO choice between Rights and Death.
The entire bruhaha has arisen over different opinions concerning the measures adopted by the Government to address the COVID19 ‘emergency’ or ‘crisis’ as the PM described it from early o’clock.
Yes, there is a serious threat to the health and lives of the citizens of this country. In fact, as the statistics of this declared pandemic show, as at today’s date, more than 210 countries and territories are affected with 2,958,375 cases and 205,407 dead. The vast majority of cases and death in the countries which are labelled ‘first world’ or most advanced or develop among the global nations.
Our country is second only to Jamaica in cases but first in deaths in the English-speaking Caribbean.
This is a health threat of humungous proportions. The measures taken by almost all countries are similar in content, if not form, as dictated by the necessity to avoid the worst effects of infection among populations and the fact that there is yet no proven cure or preventive medical tool.
Every country, according to their own legal provisions, social system, culture, etc. have reacted in much the same way.
Rights and Life (a fundamental Right itself) are not in competition or contradiction.
In this country, there is a dilemma for any administration in this situation. In the face of a public health threat of this proportion, our laws contain two strands of legal weaponry – the public health legislation – the century old unamended Public Health Ordinance and the Quarantine Act of World War II vintage amended last in 1978 and the Emergency Powers in the Constitution (Part III section 7) which will of necessity suspend all Constitutional Rights if invoked.
The choice of legal weaponry is a political choice of Government possibly more so than a legal decision as the incredibly old public health law is ‘saved’ (preserved) by the very Constitution (section 6).
That choice of legislation to use is NOT a binary choice either. In different Caribbean countries, either or both have been employed by various governments).
The irreconcilable contradiction – binary choice – that the Health Minister believes exist is simply a figment of his political imagination.
Historically, governments in this country have almost exclusively used the emergency powers of the Constitution and the Emergency Powers Act before it, for political purposes including silencing opposition political parties, putting down real or perceived threats to Government from the masses, smaller groups or even an individual House Speaker.
So, the reluctance of the present PNM administration to utilise those powers in ‘public emergency’ including ‘the occurrence of…infectious disease..”(s. 8 (2)), unlike previous incarnations of that particular party-in-power as political choice is apparent. The option of ‘Moral suasion’ is not enforceable law. It is Government policy at best, self-comfort at worst.
The ancient Public Health Ordinance provides the possibility of measures to combat the spread and worst effects of the rampaging infectious disease. The only additional tool provided by the Emergency Powers is the complete suppression of fundamental Rights and expansive police powers.
The problems that have arisen have not arisen because of the legislation or the Government’s choice of legislative weaponry but from the implementation and enforcement by “law enforcement” as is now fashionable to refer to them.
I also had to be politically correct, though horrified, when the Commissioner declared the or one role of ‘law enforcement’ is the implementation of Government policy, to again declare, how unfortunate.
The Independence of which from political interference or direction has been clear since the days of the seminal Privy Council decision in Endel Thomas v the AG, a pillar of our Constitutional law and which this CoP has defended on many occasions.
Perhaps, the most dangerous thing in choosing to use archaic legislation which every Government since Independence has promised but failed to modernise except the increase in penalties for breach of Regulations by this Parliament in this crisis, is the assumption by law enforcement of ‘powers I think I have, I DO NOT’.
For those, who claim they have scored a major victory for exposing this fundamental flaw without going to the point of demanding correction of the law, in a basic social development and governance improvement sense, there is no real advance.
As the Health Minister has erected the ‘windmill’ of binary choice, so too, have those who have sought little more than to score points, political or otherwise, against the Government, but have made no contribution to advancing our Governance in preparation for the next episode of public emergency of this type.
In this land of robber talk and double entendre (intend) sorting through the political posturing on ‘both sides’ as Daly SC put it this week, it is difficult to maintain my ‘politically correct’ posture and demand that the 2-party political monopoly desist from their self-serving ambitions and put the National Purpose First.

Clyde Weatherhead
A Citizen Fighting for
Public Right over Private Right.
26 April 2020

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