#BTColumn – It’s ‘safe’ to say we’re in the wrong ‘zone’

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by Rico J. Yearwood

“My friends, let us not be surprised by what was expected.” – these verbatim words were uttered by Prime Minister Mia Mottley at the press conference during which she unveiled the Government’s plan to institute “safe zones” with a view to curbing the staggering incidence of COVID-19 cases in Barbados.

Ironically, I instinctively utter those precise words whenever the Government clumsily drops the ball with respect to COVID-19 policies or other matters of national significance.
You can therefore imagine what I told people when I was apprised of the miscarriage of the Government’s “safe zones” initiative, which is now in abeyance. That is right. With a sheepish smile on my face, I said, “my friends, let us not be surprised by what was expected.”

Lack of legal certainty
On the 6th of November 2021, the Emergency Management (COVID-19) (Safe Zones) Directive, 2021 was published in the Official Gazette. I read the Directive as soon as it was released for public consumption. Upon reading the Directive, it did not take me long to discern that it was going to be productive of public perplexity and pandemonium.

Admittedly, when I cursorily read the Directive for the first time, I myself, as a person who is legally trained, was confused as to whether it applied to the public at large or just employers/ employees working within the designated “safe zones”.

It was only when I painstakingly perused it a second time that I realised there was absolutely no way that the Directive could have been applicable to the entire populace. Granted, I am no expert legislative drafter, but the Directive is palpably suffering from at least two legislative deficiencies.

First, the Minister of Health & Wellness, Lt. Col. Jeffrey Bostic, stated that it was the Government’s intent for the Directive to only apply to employers/employees in the “safe zones” and not to the public at large. I believe him. When one reads the Directive holistically, that was genuinely the intendment of the legislation.

However, why should I have to read a piece of legislation in its totality in order to ascertain to whom it applies? For the sake of clarity, a clause could have simply been inserted at the beginning of the Directive indicating that “This Directive only applies to employers and employees operating and working within the designated safe zones.” However, this was not done.

Second, in some instances, the Directive uses the word “person” in lieu of “employee”, and this creates further legislative obscurity. By way of example, section 3(3) of the Directive begins by stating that “For the purposes of this Directive, a person is fully vaccinated if that person . . .”.

In the interest of clarity and consistency, section 3(3) should have used the word “employee” instead of “person” so that it would provide “For the purposes of this Directive, an employee is fully vaccinated if that employee . . . ”. Alternatively, there could have been a definitional section at the beginning of the

Directive indicating that “For the purposes of this Directive, ‘person’ means an employee working within a designated safe zone.” However, this was another grave omission.
Frankly, I was disillusioned with the Government for allowing this Directive to be passed and effectuated in its current dismal formulation. The Prime Minister is a seasoned lawyer. Several of her Cabinet members are also seasoned lawyers.

Therefore, there could be no legitimate excuse for this legislative faux pas. One of the Prime Minister’s favourite phrases is seemingly “for the avoidance of doubt”, but yet this Directive was fraught with considerable doubt and legal uncertainty. Then again, a veteran columnist brought it to our cognisance recently that the Prime Minister may be experiencing cognitive dissonance. So, my friends, let us not be surprised by what was expected.

No parliamentary oversight
At the onset of the COVID-19 pandemic, Parliament devolved its law-making power to the Cabinet to create COVID-19 Orders, and the Cabinet further devolved that law-making power to the Prime Minister to create COVID-19 Directives. Simply put, all of the COVID-19 Directives are created and promulgated single-handedly by the Prime Minister in the absence of parliamentary scrutiny of those Directives.

This means that there is a concentration of power in the Prime Minister; she can pass whatever COVID-19 Directives she sees fits, and she can pass as many COVID-19 Directives as she pleases without parliamentary imprimatur.

As a Public Lawyer, I am acutely aware that this is permissible during public health calamities, such as the COVID-19 pandemic.

However, my unshakeable view has always been that this approach is undesirable, especially when we are almost two years into the COVID-19 pandemic. A few months ago, my colleague Dr. Ronnie Yearwood and I co-authored a column titled “Laws, Democracy and PM Power”, in which we observed that the rule of law is likely to be severely undercut when enormous law-making power is vested in a Prime Minister to single-handedly create and pass laws, which will inevitably implicate the civil rights and liberties of the citizenry.

The failure of the Government’s “safe zones” initiative perfectly validates our observation. The rule of law requires that legislation be clear and as legally certain as possible, especially when the legislation imposes penalties for non-compliance.

Yet, the Prime Minister’s “safe zones” Directive was hopelessly vague and uncertain, while imposing disproportionate penalties for non-compliance. Perhaps, just perhaps, if Parliament was afforded the opportunity to vet the Directive, these legislative deficiencies would have been detected and corrected before the passage of the Directive, and, in turn, the Government could have avoided the temporary suspension of the “safe zones” initiative.

I said all of the above to simply say this – the Government was cautioned against there being no parliamentary oversight of its Orders and Directives. However, as usual, this fell on deaf ears, and the Government, in its infinite wisdom, threw caution to the wind. So, my friends, let us not be surprised by what was expected.

Nevertheless, I will leave one more caution with the Government. This is the caution from the President of the Caribbean Court of Justice, Justice Adrian Saunders, who stated in the case of BCB Holdings Ltd v AG of Belize [2013] CCJ 5 (AJ) that “Prime Ministerial governance, a paucity of checks and balances to restrain an overweening executive, these are malignant tumours that eat away at democracy. No court can afford to encourage the spread of such cancer.”

Cart before the horse
Laughably, the Government only decided to consult with the Barbados Association of Medical Practitioners (BAMP) and to adequately educate the public on “safe zones” after its attempt to create these “safe zones” failed colossally.

The commonsensical approach, in my humble estimation, would have been to do the reverse – consult, educate and then create.

Then again, the Government’s approach to this issue was resonant of the approach it is taking with respect to most important issues – the approach of proverbially putting the cart before the horse. This approach seems to be the Government’s default approach, so much so that I have a friend who refers to the Government as “the cart before the horse” administration.

In my last column titled “Put the public in Republic”, I intimated that the Government would be putting the cart before the horse if it waits until Barbados becomes a Republic to properly educate Barbadians about a Republic.

Yet, a large percentage of the Barbadian population still remains clueless as to what a Republic is even though we are becoming a Republic in a fortnight. So when the Government put the cart before the horse in relation to the “safe zones” initiative, it was simply following its own precedent. Again, my friends, let us not be surprised by what was expected.

Unsafe zone
The Government’s inceptive attempt to institute “safe zones” was abortive at best and exquisitely counterintuitive at worst. It is “safe” to say that we are in an “unsafe zone”, not only because of COVID-19, but because the Government has been making too many blunders in rapid succession. As Caribbean people would say, the Government needs to “wheel and come again.”

Nonetheless, I always give credit where it is due, and I must salute Minister Bostic who conceded that the Government adopted the incorrect approach and will make amends. This is a sign of political maturity. I suppose this is why many Barbadians respect him. I really wish that more politicians would be the same way.

Rico J. Yearwood is a social activist, the Head of the Public Law Department at CARICOM Attorneys-at- Law and a co-host of the award-winning CARICOM Public Law Podcast.