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State of Emergency – disobedience of the law!

FeaturesState of Emergency – disobedience of the law!

The debate over whether there should be an extended state of emergency is a rather interesting one. I say interesting because as an advocate from early March for a State of Emergency with drastic measures to close down our country so the virus COVID19 is not imported, I based my decision on the then need to prevent the entry of the virus.

Since then, we now know that as early as 14th March, 2020, the virus was already here and that on the 19th of March, 2020, when the airport was finally locked down, the virus was already within our borders. We were a few days late. However, the good news is that while we closed our borders a bit late, the Prime Minister was finally persuaded to declare a State of Emergency and days later a partial lockdown was instituted long before a second cluster was discovered.

This is important because, given the nature of COVID-19, timing is everything. Had the lockdown been until the Easter weekend when the 2nd death was reported, at which point it was determined by the experts that this case had resulted from community spread, we would not have been on as good a footing. The formula not to lock down the country until there was community spread was based on some foreign plan, and surely was not the best for Belize, but thankfully, it was disregarded and better judgment prevailed!

Our State of Emergency, was declared 1st April, 2020 and then only social distancing was being promoted. However, by the 5th April, 2020, when the first patient died, the government realized the level of seriousness and did a half-hearted lockdown. To date we have not had a full lockdown, with only really essential services mobilizing and being out on our streets. The two Sundays with the strictest of measures are the closet I believe we will get to a real lockdown in the full sense of the word.

I think it is good news that we are not finding any more new cases, although I am optimistically cautious from my end simply because to date we have only tested .002% of our population and because the majority of our 18 confirmed cases are asymptomatic.

To open or not to open?
Under a state of emergency, the biggest power wielded by the state is that it can take away most of your constitutional rights and make regulations to that effect. However, we can be on lockdown without there being a state of emergency, which is what happened before 1st April, 2020. You see, without declaring a state of emergency, under the Quarantine Act, Section 4, the Minister of Health already had the same powers now being used under the State of Emergency. Section 4 states:

“4.-(1) The Minister may make regulations, as respects the whole or any part of Belize, including the ports and coastal waters thereof, for preventing-

(a) danger to public health from persons, ships, aircraft or any form of conveyance arriving at any place or from persons or things in ships, aircraft or any form of conveyance arriving at any place; and

(b) the spread of infection by means of any ship, aircraft or any form of conveyance about to leave any place or by means of any person or thing about to leave any place in any ship, aircraft or any form of conveyance.”

Further power is given to the Quarantine Authority established under Section 3 of the Quarantine Act. At Section 3(2) it states that the “person from time to time holding the office of Director of Health Services shall be the Quarantine Authority” and Section 5 then gives further powers to the DHS to:

“make rules for implementing or carrying into effect any regulations in force by virtue of section 4 and for supplementing any such regulations as regards any matters for which the Quarantine Authority may think it expedient to provide, with a view to carrying into effect the purposes set forth in section 4 (1).”

Thus, for now the sole purpose of the State of Emergency seems to be to effect a curfew, which from my interpretation of the law can also be done under the Quarantine Act. The difference for me, regarding why a SoE was needed was because under such emergency, the state is then under an obligation to take relief measures as the government, which the Quarantine Authority or the Minister, is not obligated to do. This is because the purpose of the Quarantine Act is really to identify and isolate or quarantine persons with an infectious disease. At the time the Quarantine Act was made law, the diseases legislators had in mind were the Plague, Cholera, Yellow Fever, Typhus, tuberculosis, and Smallpox, and these are specially named in the Quarantine Act and incubation periods of 6 to 14 days are assigned to them.

So for San Pedro there was initially a State of Emergency declared and Emergency Regulations were enacted by the Governor General because the first confirmed case was found there, making it then the apparent first cluster. However, the rest of the country was placed on initial lockdown based on Quarantine Rules stated in SI #38 of 2020. Quarantine regulations were not done by the minister as is required by Section 4 cited above, otherwise there would have been a sitting of the National Assembly to ratify these by resolutions as required by The Quarantine Act, which specifically states at Section 4(3) as follows:

“Regulations made under subsection (1) shall not have any force or effect until confirmed by resolution of the National Assembly, and in confirming any regulations, the National Assembly may make any amendments thereto which it may deem desirable.”

Nonetheless the Quarantine Authority on 25th March, 2020 proceeded to gazette Statutory Instrument #38 of 2020 signed by the Director of Health Services Dr. Marvin Manzanero. These were shortly thereafter repealed and since then, it has been only Emergency Regulations under the Constitution that have been published as Statutory Instruments that now regulate our daily lives.

Inciting others to break the law
Now we are at SI #62 of 2020, having had over five previous SIs all addressing emergency measures by regulations. This SI is for the entire country and all must comply alike, as none is above the law. However, it seems that the island of San Pedro does not consider itself part of the country, and better yet, it seems that Mayor Daniel Guerrero and area rep. Manuel Heredia believe they are above the law and have had the audacity to issue a press brief changing the law to suit them.

According to a report from the newspaper, Ambergris Today, which published the release without questioning its legality, the “the San Pedro Town Council, Hon. Manuel Heredia Jr. and the EOC have made modifications to” Statutory Instrument 62. However, that is totally illegal, since under the law only the Governor General can sign into law any regulation under the SoE.

Even more scary and a blatant disregard for the law, is that the SPTC has decided that ice cream shops and laundromats can now operate, saying they can operate from 8:00 a.m. to 3:00 p.m., when this is absolutely prohibited and unlawful. In addition they are now allowing street vendors to operate what they call “taco stands and fruit stands” and giving them permission to be open as early as 6:00 a.m. to 2:00 p.m.

If the Attorney General cannot get a hold of his own party politicians to obey the law, it can not be reasonably expected thereafter for anyone in the country to obey the law. Not only does this show the weakness in the AG getting compliance from his own UDP party affiliates, but also it is a signal that if persons in the rest of the country also do as is being incited by politicians in San Pedro, they also should not be brought before the law and punished, as that would be discriminatory.

Now, in his loud and bold voice, the AG distinctly said that you must obey the law or face the wrath of the courts, but it makes me now ask, what are the police officers in San Pedro expected to enforce in San Pedro? Will they ensure the mayor and area rep comply with SI #62, or will they allow them to do as they please? I will await the response from the Commissioner of Police, whom I have tagged on Facebook to bring his attention to the chaos now taking place on the island. Following the lead of the local politicians, some of their followers took to Facebook to defend them breaking the law and creating their own rules, either claiming they are not directly part of the country or further inciting the breaking of the law as they do not fear any legal repercussions.

It seems that they failed to read SI #62 at section 20, which clearly states:

“20.–(1) Every person who contravenes any of the provisions of these Regulations or incites or attempts to incite any other person to contravene any of these Regulations commits an offence and is liable on summary conviction to a fine of five thousand dollars ($5,000.00) or to imprisonment for two (2) years.”

By their press release Mayor Guerrero and area rep Heredia are inciting persons to disobey SI #62, and their command to others to so disobey the law has been recorded and reported by both Ambergris Today and San Pedro Sun, local newspapers. San Pedro Sun reports as follows: “a new set of regulations for businesses in San Pedro Town were announced on Tuesday, April 28th by Mayor Daniel Guerrero. During an appearance in Reef TV’s morning show, he shared the different opening hours for businesses and activities based on the type of services they provide to the island.”

However under the SoE, at Section 18(9) (a) of the Belize Constitution “the Governor General may make such regulations as are necessary …” and NO such power is bestowed on the Mayor nor any area rep. or any politician at that! Thus the Commissioner of Police himself must ensure his officers enforce the laws as gazetted.

According to the report in the San Pedro Sun, “The relaxation in regulations on the island were considered after a meeting by the Emergency Operation Center on Monday, April 27th. This meeting came about as both cases on the island have been declared ‘recovered’, and no further COVID-19 cases have been reported on the island. However, the general public is reminded that the country is still under a State of Emergency and any movement should be with a purpose.” It is as if San Pedro is not part of the country that is under the SoE!

This outright disregard by the San Pedro UDP politicians is a clear indication that they have no intention of obeying the law and they seem to flaunt this disregard in the face of the Attorney General, who demands the rest of the country to obey. However, he is unable to demand such obedience and compliance of his San Pedro UDP colleagues, who seem to think they are above the law, as not only have they incited prohibited businesses to open, but they have changed the opening hours of approved businesses, cutting down the opening hours when they have no authority to do so. I will wait to see and hear if the police on the island will act against the high command and orders of the Commissioner of Police that SI #62 MUST be obeyed… or if they will side with following the directive of the local politicians. And now I will see if the AG, who is always loud in his directives, will be equally loud in ensuring his UDP political colleagues fall in line!

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