(Excerpts of Dr. Friday’s Presentation on the COVID-19 Miscellaneous Amendments Order 2021)
I want to start with a larger issue, the more I read the resolution and went back and read the parent legislation which is Act No. 5 of 2020, which purports to confer the power on the Minister to make the changes to the Police Act that is supposed to have been so generous to those persons, those fourteen persons to preserve their pensions. The first issue is this. I don’t recall in this Honourable House that the Police Act was brought to this House and amended following a debate.
That is to say, after Section: 73 of the Police Act, Section 73 (A) was put in there of which part 2 says: “That if you are absent from duty without leave for ten consecutive days, you are deemed to have resigned your office or declared otherwise.” That’s a powerful piece of legislation. It grants a lot of power to the Minister responsible.
It affects a fundamental right of someone to employment and to their jobs. I don’t recall debating that in parliament. I don’t recall that it ever came to the parliament in the normal course; for it to be debated, so that members can present their argument for or against and then this Honourable House pass it in the normal course.
The constitution provides the power for law making, Section: 37 I believe, that says: parliament should make laws. And, Section: 41 says, how those laws should be made, how that power to pass a Bill is to be exercised. That was not done in this case.
What it purports to do and it’s something that as legislators, we have to explore and expose and discuss because this is the function that we perform. We come here to pass laws; to amend Acts of parliament. That’s our constitutional duty, but here we have in the powers granted under Act No. 5 of 2020, called the COVID-19 Miscellaneous Amendments Act, which says, that various Acts can be amended simply by amending the schedule to the Act itself. The Act that grants its power No. 5 of 2020 and by order amend an Act of parliament. What’s more, it says that if you bring that order to the parliament you have to do it having a resolution approving it or otherwise within two months but within that Act itself you can extend it up to six months, which was done twice.
So, you have essentially government amending legislation, creating new law without parliament and extending that time, by an order consented to by the Governor General. This is a constitutional and legal conundrum. It is our view that when you want to amend an Act of parliament, an Act that was passed which is the Police Act, you have to come back here and have it debated in the parliament and amend it. You can’t use a subsidiary legislation to amend an Act of parliament. In the same way, you can’t use an Act of parliament to amend the constitution. There is a hierarchy of legislation. An order is done by the Minister, approved by cabinet, is published in the gazette and that’s it. Parliament doesn’t debate it but that has provision within a particular Act that gives that Minister the power to do so.
But, to give the Minister the power to then amend essentially any Act of parliament by way of an order; it seems to me an extra-ordinary power that has been granted here; an unconstitutional power that has been granted here and especially when it affects the rights, the fundamental rights to employment and to living for individuals, brings into serious question the legislative procedures, the manner of governance in this country that diverges from what is provided in our constitution and by conventional practice as well.
What we are being asked to do here is to continue the illegality. It’s not something that we can take lightly, consent to and condone having come to that position ourselves from looking at the Act No. 5 of 2020, The COVID-19 Miscellaneous Amendments Act’. I will read the power of No. 5 of 2020. It says, “The Minister may by order amend the schedule to provide for the modification of any existing law and such law unless a contrary intention is indicated shall be deemed to be amended from the day it is published in the gazette.” Not from when it is passed in the parliament.
The Minister is not limited to powers within that Minister’s own jurisdiction but any existing law. That is an over reach. It is an unconstitutional over reach in my view. And, members on this side of the House, we cannot participate in that, condone it, support it or otherwise, we must expose it.
We come to the second aspect of this. That this extraordinary power that was granted to the Minister was then utilized to essentially prevent persons who were in the police service who did not take the vaccine and were told that they could not show up to work and so they lost their jobs. They were constructively dismissed or resigned from their jobs under this legislation, this policy.
That power that I described earlier as being an extra ordinary power granted to the Minister was then used to take away a fundamental right of persons to their employment, to provide for their families because they said, “My body is my business and I will not put a vaccine or anything in my body without my own consent; even if you are going to take away my bread”. That is the right so to do. And, all over the world that is being recognized now. So, this is a very serious violation of our legislative procedure in this House.