In an exchange of words last week in Parliament between Prime Minister Dr. Hubert Minnis and Opposition Leader Philip Brave Davis about the ongoing state of emergency, Minnis argued that Davis should tell him what other options exist to combat the virus than have been adopted by him as competent authority thus far.
Perspective has in previous articles stated its position that a state of emergency in a democracy ought to be dispensed with in the shortest possible time, and that government ought to have used the constitutionally allotted emergency duration of six months to both build response capacity, and develop the legislative framework to facilitate a COVID-19 response that submits to the rigors of normal parliamentary oversight.
Bahamians have consistently called for a COVID-19 response that is proportional to the present conditions in-country, and that is not based on the sole discretion of the competent authority, whose emergency orders such as prolonged island curfews or business closures, have often been criticized as lacking supporting data, and being disproportionate to published risk.
This is the benefit of ordinary legislation versus emergency decree, in that the drafting of good legislation necessities proportionality and balance, and the taking account of how provisions will impact different groups.
Government has been steadfast in the narrative that legislation cannot work to respond to COVID-19 nearly one year into the pandemic, when the threat of the virus is no longer new, the existence of the virus is not unexpected, and the testing regime which government says is adequate, ought to detect case clusters as they develop.
The prime minister has also insisted that all countries have used states of emergencies and lockdowns to fight COVID-19.
It is instructive to know of noteworthy examples where both arguments are not true, and of what lessons we can take from the responses of other countries.
The success of Taiwan
Taiwan’s success story in the COVID-19 pandemic is an outcome Bahamians have wanted, but have thus far not been put in a position to achieve.
Heralded as having one of the best COVID-19 outcomes in the world, the nation with a population of 23 million people has recorded 911 cases, 830 recoveries and only eight deaths.
It accomplished this without lockdowns or a state of emergency.
Instead, Taiwan’s success is credited to its early and strict border control policy which included mandatory quarantine for all returning Taiwanese travelers, and to what is said to be the world’s most rigorous contact tracing mechanism, which enabled the quarantine of infected individuals so as to allow the country to continue to function.
According to a December 2020 report by the British Broadcasting Corporation (BBC), “the island’s 23 million people have also proactively been wearing face masks, even before they were required to do so.
“The protective measures have not only helped to keep the virus in check, but also have driven down cases of the regular flu and has reduced cases of stomach flu by 90 percent.”
In an October 2020 report by Fortune Magazine, Peter Collignon, an infectious disease physician and professor at the Australian National University Medical School, is quoted as saying, “Taiwan is the only major country that has so far been able to keep community transmission of COVID eliminated.”
Fortune said Taiwan was likely to be among the few economies to grow last year, with the government in August forecasting that the gross domestic product would expand 1.56 percent in 2020.
And while schools around the world were shuttered in the early stages of the pandemic, Taiwan was “one of only six countries on earth” where schools were open, according to Taiwan News.
In addition to the use of dexamethasone and Remdesivir in its treatment protocols, Taiwan’s Taoyuan City-based Chang Gung University worked with Australia’s Monash University last year to study the antiparasitic drug Ivermectin’s potential, and biotech firm Senhwa Biosciences Incorporated was looking at its CK2 inhibitor, Silmitasertib, as a potential treatment for the coronavirus, according to BioWorld Science.
covid response in the UK
According to the UK Institute for Government, the government has relied on the use of primary legislation to respond to the pandemic.
It initially relied on the Public Health (Control of Disease) Act, with regulations issued to govern testing and quarantine, the closure of businesses, and the scale down of business services from in-person to take-away service.
This act is similar to The Bahamas’ Health Services Act.
The Institute reports, “On March 26, the government replaced these regulations with the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, under the Public Health (Control of Diseases) Act 1984, which outline rules on business closures and movement restrictions announced by the prime minister [Boris Johnson] on March 23.”
It further advises that the UK government later passed the Coronavirus Act 2020, “to give further powers to the government to slow the spread of the virus; to reduce the resourcing and administrative burden on public bodies; and to limit the impact of potential staffing shortages on the delivery of public service.
“Speaking on our IfG Live podcast, Shami Chakrabarti, the shadow attorney general, said it was preferable to have a bespoke piece of legislation to allow the government’s powers to be viewed in the round and scrutinized by Parliament.
“Under the Coronavirus Act 2020, directions made by a minister relating to potentially infectious people and to limit events and gatherings do not need to be put before Parliament. Other measures must be taken by statutory instrument – requiring parliamentary approval.”
The Institute notes that the most extensive piece of legislation covering emergency powers in the UK is part two of the Civil Contingencies Act 2004 (CCA), which replaced the Emergency Powers Act 1920.
This is designed to provide powers to the government to act in the event of a catastrophic emergency, but the Institute states that emergency powers under the CCA have never been used.
The Trinidad cases
In his Senate rebuke last week of a Nassau Guardian editorial that spoke to the use of legislation to respond to the pandemic, Attorney General Carl Bethel cited recent cases heard in the High Court of Trinidad and Tobago, where he said Justice Ronnie Boodoosingh ruled that the power to enforce certain restrictions such as curfews, can only be granted by the constitution.
Bethel referenced the following portion of the ruling: “However, there is a second layer of law available where the outbreak of infectious disease has expanded to such an extent that it leads to a state of affairs so serious in the country which then triggers the operation of the emergency provisions of the constitution and allows for a declaration of a state of emergency. The two are distinct. In such a case, wider powers will be available in terms of imposition of curfews and the like.”
It is interesting that Bethel chose to reference this ruling, given aspects of the pandemic response in The Bahamas.
Of note is that Trinidad and Tobago is responding to the pandemic via regulations that were implemented as part of existing public health legislation.
In a population of approximately 1.4 million people, it has reported over 7,564 cases, 134 deaths and 7,168 recoveries.
The cases the AG cited were of two claims brought by a total of six men who were arrested for breaching the country’s COVID-19 regulations, and who brought claims challenging the validity of those regulations.
In dismissing the claim by defendant Satyanand Maharaj, that regulations affected his ability to host his religious services and functions, and practice his religion in the manner he usually does and were therefore a breach of his fundamental rights, Justice Boodoosingh ruled: “It seems to me that the measures in the regulations are precisely the kinds of measures which have been found to be and considered as necessary to prevent and check the spread of the virus as contemplated by the regulations.
“It also seems to me that public health regulations to prevent the spread of infectious and dangerous disease fall within a narrow compass of exceptional laws which permit a minister leeway to restrict certain of the rights and freedoms under the constitution.”
As for the portion of the ruling cited by Bethel in support of his characterization of the Guardian’s editorial as “is ill-advised legally”, while curfews have been used throughout the country’s pandemic response, data has yet to be presented to show how being required to be indoors by 10 p.m. or 7 p.m. in and of itself, is positively correlated with a decrease in COVID-19 cases in The Bahamas.
Nevertheless, Justice Boodoosingh’s qualifier regarding the justification of a state of emergency was, “where the outbreak of infectious disease has expanded to such an extent that it leads to a state of affairs so serious in the country which then triggers the operation of the emergency provisions of the constitution…”
At the point that the government asked the governor general to declare a state of emergency, total confirmed cases in the entire country stood at just three, and all on one island.
That initial state of emergency bell back in March cannot be unrung, but The Bahamas can benefit from studying the responses of other countries so as to move out of a state of emergency, which due to its gravity is rarely declared in stable democracies.
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source https://thenassauguardian.com/as-the-world-turns/
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