The world, including our country, is in the grip of a deadly pandemic.
To date, in Trinidad and Tobago, over 55 families have lost their loves ones, our economic activity has come to a near standstill, businesses are closing, households are without income, our public healthcare system is under strain, our education system has been disrupted as pupils are unable to return to school while the Government struggles to achieve some semblance of normalcy for citizens and residents.
Here at home it cannot be repeated enough that now is not the time for partisanship, petty politicking and public legal gymnastics by opportunists. Catastrophe can only be averted by all of us working together to ensure that we act responsibly and with care and concern for one another in order to stem the spread of the Covid-19 virus and ultimately to overcome it.
Our circumstances, perilous as they may be, should not be used to discourage legitimate checks by the courts on the exercise of governmental (meaning executive) power, in the public interest. What should be discouraged, however, is the misinterpretation (intentional or not) of judicial pronouncements for the hollow purpose of political gamesmanship.
Last week, the High Court held that the regulations which the Minister of Health made under the Public Health Ordinance in an effort to curb the spread of the coronavirus were, with one small exception, lawful and constitutional. Many of us may have missed this because of the political posturing that followed publication of the judgment.
This case concerned a claim by people who were arrested when found breaching the regulations by gathering at a guest house, who challenged the regulations as unconstitutional. So too did a religious head who claimed his freedom of religion and to worship were being breached by the regulations. Essentially, the argument which was advanced was that the restrictions imposed by the regulations breached constitutional rights, and could not be imposed merely by the regulations.
The High Court held that the Public Health Ordinance empowers the Minister of Health to make regulations to curb the spread of infectious diseases. The minister had done so, acting on the advice of public healthcare professionals whose advice informed the content of the regulations.
Further, because the Public Health Ordinance was a law in force before the Constitution, it was an “existing law” within the meaning of the Constitution and therefore the ordinance and the power given to the minister were constitutional, as were the regulations made under the ordinance, provided they were within the scope of the power given to the minister.
The challenges to the regulations on the ground of alleged unconstitutionality were dismissed by the court.
The High Court, however, held that in relation to one aspect of the challenge by the religious head—namely, to the creation by the regulations of offences for breach of guidelines issued by the Ministry of Health, because some of the guidelines were couched in language that lacked certainty or precision—the creation of offences in relation to those was unlawful.
This part of the ruling led to the unfortunate headline in one newspaper that disingenuously gave the impression that the court had struck down the Covid-19 regulations in their entirety, which was not the case.
Much noise was made in some quarters as a result of the court’s suggestion that consideration should be given to allowing Parliament to scrutinise future regulations before they are brought into force. The noise was amplified so as to suggest that the Executive was somehow acting inappropriately by avoiding parliamentary oversight.
This diversion is unnecessary and divisive. It is the law of the land—by virtue of the express provisions of the Public Health Ordinance—that in the face of a pandemic the Executive, through the Minister of Health, can (and should) take steps through the making of regulations to stem the spread of the virus.
Action necessarily must be swift and decisive, but the minister must act responsibly. He must heed the advice of the healthcare professionals. They, like the officers of the Chief Parliamentary Counsel (CPC) who draft the regulations, are independent public servants.
Everyone, from minister to the Chief Medical Officer and his colleagues, the CPC and his legal officers, and all public officers involved, are under great pressure as they deal with a situation that changes almost daily. Decisions taken may have to be implemented in a few days or even hours, in order to save lives and to protect the public health.
The last thing needed, as called for by the noise makers, is parliamentary involvement in the minutiae of the making of regulations under the guise of oversight, which will only permit nit-picking, political grandstanding, obstruction and unnecessary delay while lives are at risk.
Our Constitution mandates that the courts (as happened last week) are there to check on the lawfulness of regulations made under the ordinance. We can rest assured that the courts, as they have continuously and reliably done in the past, will act fearlessly in this regard. They may well be called upon to do so soon, having regard to the confusion which exists in the mind of the public caused by the conflicting statements of the Government, Opposition and Police Service as to whether the police can enforce so-called public regulations in private spaces.
—Mickela Panday is the political leader of the Patriotic Front.