Franklyn: COVID Directives ‘contrary to law but must be obeyed’

Opposition Senator Caswell Franklyn on Tuesday blasted the penalties being imposed by the court on violators of the COVID-19 directives, declaring that although he is not a lawyer, the directives are “ill-conceived and contrary to law”.

Yet, despite suggesting a flaw that potentially invalidates the rules, he insisted that the directives are the law and must be obeyed “until such time as they are revoked or struck down by a court of law”.

The Emergency Management (COVID-19) (Curfew) (No. 4) directives impose a fine of $50,000 or one-year imprisonment, or both, to anyone who fails to comply with the terms and conditions of the ongoing curfew.

In recent weeks, several offenders have been jailed for breaching protocols.

The Upper Chamber lawmaker called on Prime Minister Mia Mottley to explain the 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.

That law sets a limit on the penalty for the contravention of regulations granting broad ministerial powers to a maximum $500 or a three-month jail term, or both. Higher penalties would have to be fixed by Parliament.

The trade unionist claimed that under the Emergency Management Act that was amended last year, “Cabinet was empowered to delegate its power to make rules to the Prime Minister”.

Senator Franklyn however argued: “ 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.”

He further pointed out that section 49 of the Interpretation Act states that any such delegation of functions must be published in the Gazette.

Senator Franklyn said: “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?”
(SD)