By Charlesworth C. M. Tabor, Attorney-at-Law
The fallout from the Covid-19 crisis has exposed the weaknesses in the health, social, economic and political infrastructure in countries around the world. Our little island of Antigua and Barbuda is no exception. However, my focus in this article with respect to Antigua and Barbuda will not be on the health, social, economic or political weaknesses engendered by the Covid-19 pandemic, but rather on the many legal blunders committed by the government in its response to the crisis.
To take steps to combat the crisis, the government’s first course of action was the imposition of a public state of emergency. This was correctly done when the Governor-General, acting pursuant to section 20 (1) of the Constitution of Antigua and Barbuda, issued a Proclamation on the 25th March, 2020 declaring a state of public emergency. Prior to this though, the Minister of Health pursuant to section 100 of the Public Health Act, Cap. 353 of the Laws of Antigua and Barbuda, declared Covid-19 to be a dangerous and infectious disease. This act by the Minister of Health was absolutely necessary to ground the subsequent Proclamation of a state of public emergency by the Governor-General as a result of the Covid-19 pandemic. So far so good in terms of the legality of the government’s actions.
Now to the Regulations made under the Public Health Act. However, before dealing with that, it is important to first set the foundation for the enacting of Regulations and their operation. Regulations are laws just like an Act of Parliament, however they are made differently. Regulations are sometimes described as Secondary, Surbordinate or Delegated legislation. The reason for this description is because Regulations are made pursuant to a Principal Act of Parliament. In the instant case I am looking at, the Principal Act would be the Public Health Act, Cap. 353 and the Regulations made under it would be the Secondary, Subordinate or Delegated law (Statutory Instrument).
The Principal Act would set out the procedure for the making of Regulations. In the case of the Public Health Act section 102 states that “The Board shall have the direction of all measures dealing with dangerous infectious diseases, and may make regulations with regard to the control of any dangerous infectious disease …..”. Now the next step in the process after the Board (i.e., the Board of the Central Board of Health) would have made its regulations is stipulated in section 176 of the Public Health Act which states that “Regulations made by the Board under this Act shall not take effect until and unless they have been approved by the Cabinet and such regulations shall be laid before Parliament for confirmation.”
In dealing with the crisis presented by the Covid-19 disease, we all would expect the government to take action to address the crisis. However, in taking any action the government must act squarely within the confines of its legal authority. This notion is simply the principle of the Rule of Law which requires that the government, just like any ordinary citizen, must obey the law. It is a fundamental principle in the functioning of a democratic society and should always be observed.
Now, the comedy of legal errors of the government started when the Minister of Health, the Honourable Molwyn Joseph made Regulations on the 20th March, 2020 as contained in Statutory Instrument No. 16 of 2020. These Regulations as you are well aware were to regulate our behavior and conduct under the state of emergency such as the wearing of masks and social distancing etc. You should also now be aware as well that the Minister of Health under the Public Health Act had no authority whatsoever to make Regulations under the Act. The power to make Regulations under the Act is vested in the Central Board of Health. It means, therefore, that the Regulations made by the Minister of Health was unlawful and null and void.
I must pause here to give some credit to the government because it subsequently discovered that the Regulations made by the Minister of Health was unlawful and those Regulations were subsequently replaced by Regulations made by the Board of the Central Board of Health and signed by its Chairman Eustace “Tiko” Lake on the 4th April, 2020.
On the 7th April, 2020 the new Regulations signed by Eustace Lake were published in the Gazette as Statutory Instrument No. 27 of 2020. However, my dear readers, while these Regulations were now correctly made, they were nonetheless still unlawful because they failed to follow the proper procedure to become law. Remember, as I indicated earlier, pursuant to section 176 of the Public Health Act, Regulations before they become law must be approved by Cabinet and then confirmed by Parliament. After confirmation by Parliament, the Regulations would then be gazetted and immediately become law just like the Principal Act under which they were made.
You must be wondering at this moment how could the Regulations made by Eustace “Tiko” Lake, Chairman of the Central Board of Health, be just as unlawful as those previously made by Minister of Health, the Honourable Molwyn Joseph, who had no locus standi to make such Regulations. Well, my dear readers, the Regulations made by Eustace Lake on the 7th April, 2020 were unlawful for the simple reason that they were not confirmed by Parliament as required by section 176 of the Principal Act.
Now the question that you should be rightly asking at this juncture, is what does confirmation by Parliament mean? The procedure for the confirmation of these Regulations by Parliament simply required that the Regulations should be placed on the Order Paper for a session of Parliament. No debate or anything would be required by Parliament as in the case of the passage of the Principal Act. This was never done hence the Regulations could not have become law.
To those naysayers who would wish to challenge my assertion that no confirmation was ever obtained from Parliament, let me suggest to you that the last time that Parliament ever met in this country was on the 31st March, 2020 when the so-called Virtual Meeting of Parliament was convened. As I have indicated elsewhere, even the meeting of this so-called Virtual Parliament was unlawful. All of the Regulations made by Eustace “Tiko” Lake were done in the month of April and Parliament never met in that month. Moreover, even the previous Regulations made by the Minister of Health were never confirmed by Parliament, so those Regulations were doubly unlawful i.e., the Minister had no authority to make them and they were not confirmed by Parliament.
What is the way forward then, in light of these comedy of legal errors committed by the government? If the government were a person it would perhaps end up in 1735. However, the government is not a person so jail time would not be an option. In the circumstances, and given the principle of the Rule of Law, I would simply beseech the government that it should acknowledge the fact that the way it implemented the Regulations under the Public Health Act was unlawful. Moreover, the government should come to the public and make an apology for this egregious faux pas in its failure to act according to the law. Yes, we know that we are experiencing a crisis with the Covid-19 pandemic, but nothing (absolutely nothing) justifies the government acting outside of the law. It is unacceptable in any situation.