Winning Words: Government’s shameless power grab on back of COVID-19

 

 

BRITISH PRIME MINISTER Sir Winston Churchill told the people of the Empire at the height of World War II they were not fighting for glory but survival.

That was after General Jan Smuts had dissuaded Churchill, apparently in search of the glory which had eluded him in the previous war, from attempting to get on a warship and personally lead the troops in the unprecedented Allied invasion of France to turn back the rampaging Nazis.

In the current “World War III” against the “invisible enemy” that is the novel coronavirus COVID-19, an American lawmaker put it best Friday morning: “Our country faces a battle with the pandemic, the biggest battle we have faced as a nation together in a generation.  Amidst uncertainty, we work to keep Americans alive by stopping the spread of COVID-19.  In these times, heroes will be made and not selected.”

In Barbados, it seems we want to elect our heroes.

It ought not have been left up to a non-lawyer to point out to a Government liberally populated with attorneys, including two former Attorneys General, that Friday’s amendments to emergency powers legislation, especially to order a ten-hour nighttime curfew from yesterday, were unnecessary since the statutory authority already exists.

Sadly, it was.  And as it turned out, the dramatic, rarely done same-day consecutive sittings of the House of Assembly and the Senate, followed by the Governor General’s assent and proclamation immediately afterwards, was on the surface merely gratuitous take-charge grandstanding by an administration pregnant with optics and PR and in search of glory in a war on disease.

But unfortunately, it barely concealed a naked, shameless attempt by Government to secure more power, regretfully, in the midst of an unprecedented worldwide pandemic that has struck fear and anxiety into the hearts of people everywhere, and killed about thirty thousand so far.

Opposition senator Caswell Franklyn, a former public officer, now a militant trade unionist, was at pains to point out to Government, during debate in the Senate on the Emergency Management (Amendment) Bill passed moments earlier by the House, that its stated purpose of providing for the declaration and management of a public health emergency is already available under the Emergency Powers Act. 

Provides for protection

Now, the Emergency Powers Act, referenced by Franklyn, provides for “the protection of the community in cases of emergency.”

Clause 2 says a public emergency shall be declared (outside of war) “as a result of the occurrence of any earthquake, hurricane, flood, fire, outbreak of pestilence, outbreak of infectious disease or other calamity” (my emphasis). 

“I daresay COVID-19 is that other calamity, so there is absolutely no reason to go wasting time fiddling while Rome burns to bring us here.  I don’t know why we are here.  The Government has the power to do all that we have just described.  They are contained in several pieces of legislation, first of all the Emergency Powers Act and in the Health services Regulations,” he said.

Clause 3 brooks no debate or want of interpretation: “Notwithstanding any other provisions of law, when a proclamation of emergency has been made and so long as the proclamation is in force, it shall be lawful for the Cabinet to make any order whatsoever [my emphasis] which it considers desirable in the public interest.”

And this untrammelled power of the Cabinet is repeated and reinforced in the Emergency Management Act that “it shall be lawful for the Cabinet to make any orders whatsoever it considers desirable in the public interest” (my emphasis).  

When the Barbados Labour Party (BLP) Government passed the Emergency Management Act in April 2007, its stated purpose was “to provide for the effective organization and management of disasters and other emergencies [my emphasis] in Barbados.”

In the “Interpretation” section of the act, an “emergency” is defined as a public emergency declared under section 28(1) “on account of the threat or occurrence of a disaster”; a “serious occurrence that takes place unexpectedly and demands an urgent response or attention.”

Also, “disaster” is defined as “a serious disruption of the functioning of a community or a society causing widespread human, material, economic or environmental losses which exceed the ability of the affected community or society to cope using its own resources, but excluding events caused by war or military confrontation.”

That it did not include “a public health emergency” is now being said by BLP spokesmen to have been “an oversight.”

Now, my constitutional lawyer friend will likely say the lawyers would “lawyer that out,” that is, it was done out of the abundance of caution, or for the avoidance of doubt.  And that is their default position.

But as an editorial in The Economist newspaper reminded last week, the state must act decisively.  “But history suggests that after crises the state does not give up all the ground that it has taken,” it warned.