Prime Minister, Caswell is no Lawyer but …
Submitted by Senator Caswell Franklyn
Many commentators have weighed in on the application of the COVID-19 directives, particularly with regards to the sentencing of offenders and the apparent gusto displayed by the chief magistrate while presiding over the resulting cases. My own view is that these directives are flawed, but for the purposes of this article I would consider them as valid. Mind you, I am reminded by no lesser person than the Prime Minister that I am not a lawyer. But as a lawmaker, I believe that I have an obligation to question laws that appear to my untrained mind to be applied unfairly or irregularly; and a right as a concerned citizen to ask whether my rights as a member of the public are being infringed by the government.
Under the provisions of the Emergency Management Act, as amended last year, the Cabinet was empowered to delegate its power to make rules to the Prime Minister. As a result, a series of directives were issued by her to regulate, and where necessary, punish people’s behaviour during the state of emergency.
I believe in many cases that these directives are ill conceived and contrary to law but I must point out that they are the law and must be obeyed until such time as they are revoked or struck down by a court of law.
I am concerned by the penalties being imposed by the court on persons who violate the directives issued by the Prime Minister. The statutory instruments made by the PM provide that a person who contravenes the directives is guilty of an offence and liable on summary conviction to a fine of $50,000 or to imprisonment for a term of one year or to both. Since I am no lawyer and not expected to understand these things, I must ask the Prime Minister to explain how she could specify such hefty punishments in the statutory instruments that she has made so far, in light of the provisions of section 19.(10) of the Interpretation Act? It states:
Where an enactment confers power to make any statutory instrument-
(a) there may be annexed to a contravention of that statutory instrument a punishment by way of a fine not exceeding five hundred dollars or imprisonment for a term not exceeding three months or both.
My elementary understanding of the law has led me to believe that the Prime Minister has no power to override the provisions of the Interpretation Act. But even if she has, I would still like this Queen’s Counsel to explain where she derived the power to legislate without bringing the statutory instruments to Parliament for approval.
It is my understanding that the Emergency Management (Amendment) Act, 2020 and the Interpretation Act allow the Cabinet to delegate its functions to the Prime Minister or anyone else. But, I’m also aware that section 49 of the Interpretation Act states that any such of delegation of functions shall forthwith be published in the Gazette. At my request, staff at the Government Printing Department, publishers of the Official Gazette, have been unable to locate a copy of the order that delegated those functions. Was that order ever made and published? I shudder to think that the Prime Minister would have been making rules/directives without first obtaining the requisite order that would have enabled her to do so.
As a non-lawyer, I am asking the Queen’s Counsel: what would happen to persons who were convicted and sentenced under these rules/directives? Would they be entitled to compensation or a refund? Or would you amend the Constitution to make wrong things right?