Martin Daly

Martin Daly

Just before his very welcome elevation to the Court of Appeal, Mr Justice Boodoo­singh gave a decision on the Public Health Ordinance and the Coronavirus Regulations made under it. The importance of the decision was blurred by claims of who won or lost the case made by politicians interested in the case.

There were two sets of claimants in the case. One was a group of five led by Mr Dominic Suraj. That case was an unqualified success for the Government, as the claim of the Suraj group was dismissed.

There was no shame in that dismissal because it was confirmed that they made a worthy challenge to the legislation. However, the result produced certainty that the Government had been proceeding on the right legal track.

In the words of the judgment: “The claimants have raised important constitutional issues in this matter. This is the first decided case which tested the Covid-19 Regulations. The Regulations have justifiably impacted on how every citizen goes about his or her daily life. The issues raised have by no means been frivolous. They were considered to be sufficiently important since they affected rights and since several persons have been charged for breaches of the law. The challenge has sought to interrogate fundamental constitutional principles.”

The second claimant was Pundit Satyanand Maharaj. He claimed that the imposition of certain specified regulations had affected his ability to host his religious services and functions and to practise his religion in the manner he usually did, and therefore breached his fundamental rights under the Constitution.

Pundit Maharaj succeeded in his claim to a very limited extent. None of the Regulations were struck down in their entirety. In the words of the judge: “It is declared that the relevant Public Health [2019 Novel Coronavirus (2019-nCoV)] Regulations, 2020 (No 23) are unlawful to the extent only that they make a breach of the Guidelines for Places of Worship, made by the Ministry of Health, a criminal offence. The other aspects of this claim are dismissed.”

Readers will readily see there is little political capital in the result of this case available to be deployed against the Government.

The court confirmed that the ancient Public Health Ordinance is a valid law and that the Government has made valid regulations using it. The regulations were found to be proportionate, given the seriousness of the pandemic. In other words, the Government had not gone so draconian, particularly in respect of the restrictions on gatherings and social distancing, that the Regulations could not be permitted to stand.

There was another very significant aspect of the decision. The court expressed a concern about extensive regulation-making without the scrutiny of Parliament. It advised that expanding the areas of law where Regulations are made by the Executive, restricting rights and freedoms of individuals without parliamentary scrutiny, is not to be encouraged.

As things turned out, the court’s concern about proscribing too much by regulations was made more vivid, mere days later, by the issue whether the Regulations should or could have been used to enter the Bayside Towers private property and to make arrests at a poolside gathering there. This led to the Commissioner of Police using volleys of intemperate language in response to the Prime Minister’s comment on the event.

The ­Commissioner’s statements, which are never mild, reached a high level of intemperance because they seemed to impute racism or hypocrisy on the part of the Prime Minister. Certain mouths need to go into quarantine.

Reportedly, the fallout from this exchange is engaging the Police Service Commission, which has disciplinary control over the Commissioner of Police. The commission’s utterances about the confidentiality of its recent appraisal of the Commissioner’s performance—although he quoted favourable parts of it to the media, thereby putting it in the public domain—suggest that it has a wrongly restrictive view of its accountability.

Did the commission appraise the relationships of the Commissioner of Police with stakeholders as it should have? What was the grade given for this? His abrasive manner in that regard is now squarely before the commission. It must be accountable for the outcome of its deliberations.

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