30.03.20

Border Clash: Jamaicans’ Constitutional Right to Come Home

Gavin Goffe
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Border Clash: Jamaicans’ Constitutional Right to Come Home

The Prime Minister’s decree that the country’s ports are closed to all incoming passenger traffic, including Jamaican citizens presently overseas, raises a number of constitutional law issues.  The government has a responsibility to protect the rights of all its citizens, including the 2.6 million in the diaspora.  The government must also protect us here in Jamaica from COVID-19. Our Charter of Fundamental Rights and Freedoms is there for a time such as this.

When any outbreak occurs, there’s a natural instinct to prefer locals over returning residents. In 2014, two U.S. citizens who had contracted the Ebola virus whilst performing healthcare work in Liberia were brought back into the USA for treatment, amidst tremendous public outcry.  Then-presidential candidate, Donald Trump, tweeted “Stop the EBOLA patients from entering the U.S. Treat them, at the highest level, over there.  THE UNITED STATES HAS ENOUGH PROBLEMS!”  He followed up with, “The U.S. cannot allow EBOLA infected people back.  People that go to far away places to help out are great- but must suffer the consequences!.”  Fast-forward to 2020; Trump is president and US citizens and permanent residents who have visited a high-risk COVID-19 area are allowed back, but must fly into one of America’s 13 international airports with enhanced entry screening capabilities.

Our Constitution, with its revisions in 2011, is much clearer and stronger on citizens’ right to return home than the Americans’.  Amongst the rights in the Charter of Fundamental Rights and Freedoms is “the right to freedom of movement, that is to say, the right (i) of every citizen of Jamaica to enter Jamaica…”  This right is expressly subject to another provision which states, “Nothing contained in or done under the authority of any law shall be held to be…in contravention of…this section…to the extent that the law authorizes the taking, in relation to persons…whose freedom of movement has been restricted by virtue of that law, of measures that are reasonably justifiable for the purpose of dealing with the situation that exists during a period of public emergency or public disaster.”  What is “reasonably justifiable” (although not in the context of a public emergency) was discussed at length in Julian Robinson v The Attorney General of Jamaica, or the "NIDS case” as it’s popularly known.

In that case, the Constitutional Court discussed the need for proportionality when protected rights are violated.  The proportionality test has 4 subcomponents; (i) the measure restricting the right must have a legitimate goal, (ii) it must be a suitable means of fulfilling this goal, (iii) there must not be any less restrictive but equally effective alternative and (iv) the measure must not have a disproportionate impact on the right-holder.

In the current COVID-19 crisis, there can be no doubt that parts (i) and (ii) have been satisfied.  COVID-19 is a global threat like nothing any of us has seen before. Strong, decisive and often uncomfortable measures are required in order to save lives.  The government must consider the health and safety of immigration and customs officers as well as other staff working at our airports and seaports.  Restricting the movement of people, whether inside the country or from entering the country is a fundamental part of every nation’s strategy to combat this pandemic.  There is, however, room for debate on the 3rd and 4th components.

Clearly, there are alternatives to the travel ban that are less restrictive.  Would it not be equally effective to impose a full ban on symptomatic citizens whilst asymptomatic ones could be allowed to enter and placed in quarantine in a government facility and tested immediately?  Some will point to Elephant Man’s recent gully-creep past immigration officers to say that such protocols are ineffective. Others will say that it was the half-hearted enforcement of protocols, and not “Ele”, which was the weak fence.

Most countries, including the majority of CARICOM, are (at the time of writing) permitting their citizens to come home, subject to increased screening, testing and 14-day quarantines.  Notable exceptions include Trinidad, which has refused to reopen its borders to 35 citizens stranded in Barbados.  Their National Security Minister is reported as saying that those citizens, “took personal decisions” but that “the duty of the government, which we are very clear about is to protect those who are here in Trinidad and Tobago and to uphold our decision to close the border.”  Trinidadians do not, however, have a constitutional right to enter their home country.  Neither do Haitians, or Guyanese citizens, whose governments have also closed borders to all incoming passengers.

Any Jamaican citizen affected by the ban on incoming passengers may request a prompt review of his or her case by an independent and impartial tribunal.  You don’t need to be denied entry into the island to request a review or, alternatively, to challenge the constitutionality of The Disaster Risk Management (Enforcement Measures) (Amendment) Order, 2020.

What about Jamaicans whose visas or work permits will expire during this period?  Must they, at least, attempt to leave the foreign country and go somewhere else, so as not to “overstay”? If they do overstay, how will that affect any future application to return? What provisions have been made for deportees or are all deportations on hold as well?  This takes us back to the 4th component of the proportionality test and whether the Order will have a disproportionate impact on some.

Although the measures seem to have support from the majority of local residents, we must all guard against disregard for the constitutional rights of “others” who are directly affected by these restrictions, whether they live in Corn Piece or Connecticut, Bull Bay or Brooklyn. Some of the responses on social media are as insensitive as the statements made about the Ebola patients in 2014.  As J. Nicholas Murosko said in his 2016 article, Communicable Diseases and the Right to Re-Enter the United States, “Because the threat of communicable diseases is certain to be a recurring narrative in the 21st century, it is imperative that our global health organizations, world leaders, and even our legal systems learn from [the 2014 Ebola outbreak].  An informed dialogue concerning the interplay between public health and our legal system may help curb some of the fear and callousness demonstrated when sick citizens return home.”