Court battle launched on constitutionality of law as COVID-19 weapon
Buffeted by criticism of the flagship legislation used to contain the coronavirus outbreak, the Holness administration will face an acid test when the first constitutional challenge against the Disaster Risk Management Act (DRMA) is to be mentioned in the Supreme Court on November 1.
Firebrand clergyman, the Reverend Jeffrey Shuttleworth, of Freedom Come International Ministry, is challenging the constitutionally of the 2015 act, which he is contending trespasses on religious freedoms guaranteed by the Constitution.
The Jamaican Government, since last March, has employed the use of the DRMA as the primary legislative tool to manage and contain the pandemic.
However, there has since been growing unease about what some critics say is the oppressive nature of the law, with more and more Jamaicans questioning and contemplating challenging the constitutionality of the act.
St Ann brothers Justein and Jevaughn Callum, who were recently fined $25,000 in the St Ann Parish Court for breaching the curfew and not wearing masks, have indicated that they are contemplating filing a constitutional claim. The brothers are maintaining that they were in Brown’s Town Square awaiting transportation when they were arrested.
But president of the United Independents’ Congress, Joseph Patterson, and three other persons who were recently charged with breaching the DRMA following an alleged unauthorised march last month, have indicated that they, too, will be challenging the constitutionality of their arrest under the act.
Patterson and his co-accused, Kevaughn Harris, David Thompson, and Abbey Gayle Thompson, through their lawyer, Hugh Wildman, advised Senior Parish Judge Lori Ann Cole-Montague on Thursday that they would be filing a constitutional claim.
The quartet was arrested and charged during an anti-vax march on September 22 in downtown Kingston.
The leader of the country’s third registered political party was charged with organising a public march without a permit, a gathering of more than 10 persons, resisting arrest, and taking part in a public march without a permit.
His co-accused were all charged with breaches of the DRMA, resisting arrest, and failing to disperse from a prohibited march
The Thompsons, however, who are not related, were additionally charged with failing to wear a mask and disorderly conduct.
According to Wildman, he will be challenging the constitutionality of both the DRMA and the Public Order Act in light of the 2011 amendment to the Constitution, which gave birth to the Charter of Fundamental Rights and Freedoms.
“The DRMA is being used by the Government to control the pandemic. We have no difficulty with measures being put in place to control the pandemic, including the wearing of a mask. Where the challenge and difficulty is, is that the Government is using the wrong vehicle to do so,” the attorney said.
Wildman explained that Section 20 of the Charter of Fundamental Rights and Freedoms provides for the Government, when there is evidence of a pandemic or epidemic, to ask the governor general to issue a proclamation declaring a state of emergency. Once that is done, the Government is permitted to invoke the Public Order and Emergency Power Acts and to pass the necessary regulation to control the pandemic.
“That is the avenue that the Constitution provides for,” he said.
“The Government has chosen to bypass this, and he used the DRMA, which is an ordinary piece of legislation, to infringe on fundamental rights and freedoms. That is unconstitutional.”
Wildman told the court that the DRMA, when passed in 2015, was fashioned to control events like floods and earthquake.
The lawyer told the court that he plans to consolidate two matters once he has filed the claim.
Consequently, he requested that the court adjourn the matter for the accused to file the motions and set a far mention date. As such, a December 14 date was scheduled and the accused’s bail was extended.
According to the police, about 200 people participated in the unauthorised Patterson march.
Meanwhile, Shuttleworth has insisted that the restrictions placed on churches have not been imposed on other entities like call centres.
Among several declarations being sought is that because of “the absence of a proclamation by the governor general declaring a state of emergency under Section 20 of the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act 2011, actions taken by the executive under Section 26 (2) of the Disaster Risk Management Act and the amendment there under and thereto are illegal null and void and of no effect”.
Shuttleworth stated further in his affidavit that with the onset of COVID-19, the Government has sought to use the provisions of the act to curtail constitutional rights, including the right to freedom of movement, and the right to engage in religious activities.