KINGSTON, Jamaica March 31, 2021 - Despite repeated warnings from Opposition Leader Mark Golding that sweeping powers being given to the Prime Minister to create offences, which could lead to criminal penalties appearing on a person's criminal record, under the Amendments to the Disaster Risk Management Act, the government dismissed the Opposition concerns and used its majority on Tuesday evening to pass the amendments to the statute.
The Bill, having passed the Senate last Friday, went back to the House of Representatives on Tuesday where, after several rounds of debate, the government insisted that the changes by the Senate would not lead to persons having criminal records. The bill was put to a vote and passed along party lines where thirty-four JLP MPs voted in favour of the amendments.
Opposition Leader Mark Golding had issues with the bill, particularly in relation to amendments made by the Senate, which he suggested reversed changes which had made it clear that offences based on orders by the Prime Minister would not appear on a person's criminal record.
While agreeing with the intent of the bill to impose penalties on persons who breach the Disaster Risk Management (Amendment) Act (DRMA), and thereby institute penalties for breaches of COVID-19 related protection orders, the Opposition Leader insisted on the Imposition of parliamentary checks on the prime minister's move to create criminal offences by ministerial order without Parliamentary oversight.
Golding noted that “The Disaster Risk Management (Amendment) Act, which was passed [initially] in 2013, allowed the prime minister to make laws under Section 26 where there is a disaster, but did not make breaches of those orders a criminal offence.”
“The effect is that, in a disaster, the prime minister can basically criminalise any conduct that he sees fit, without Parliament having any say in the matter," Golding lamented.
"I believe that it is fundamentally wrong, bad governance and inconsistent with our democratic traditions and the balance of power between the different arms of the State,” the opposition leader declared.
Since March 10, 2020, the Government has employed the Disaster Risk Management Act as the primary legislative tool to manage the coronavirus (COVID-19) pandemic.
Under the legislation Clause 52 of the Act has been amended to include a structure of offences and penalties, including fixed penalties in relation to the Orders made under the Act.
“The clause specifies the procedure to be applied when a constable deems that an offence has been committed. This includes the serving of a formal notice, which is, essentially, a ticket that specifies the details surrounding the offence.
The notice also offers the chance of paying a fixed penalty for the offence within a specified period of time, failing which the notice becomes a summons to appear in court to answer to the charge. A minimum of 30 days must pass between the date the notice is issued, and the date that the fixed penalty is to be paid.
Additionally, anyone who has to face the courts for failing to pay the penalty will not be liable for conviction for the alleged offence if the fixed penalty is paid before a final judgment of the case is delivered.
The fines are payable at any Collectorate or through the website of Tax Administration Jamaica. The Form of the Notice is also displayed in the Schedule.
Clause 52 also contains the Sixth Schedule, which addresses the list of fixed penalties for breaches. This list has 10 levels, or tiers of fixed penalties, which range from $3,000 for first-level offences to $500,000 for offences at the 10th level. There are 40 offences specified that attract these fixed penalties.
Failure to wear a mask in public, not keeping the six-foot physical distancing rule, or breaching the protocols governing public transportation will attract a $5,000 fine.
In addition, if persons fail to stay in an abode or place of residence during a curfew, they could face a fine of $10,000. If a gym is operated outside of the time specified or small outdoor events are held in breach of the Order, the fixed penalty is $20,000.
Also, any person who normally resides in Jamaica and on returning to the island from overseas fails or refuses to remain in quarantine, or to obey any other direction or order, is liable for a fine of $25,000. If a person who does not normally reside in Jamaica, or who is a tourist, refuses to stay in the Resilient Corridor as required, the penalty is $30,000.
Furthermore, any person who has COVID-19 and refuses to stay in quarantine, is subject to a fine of $50,000, and the same amount applies to any employer who does not comply with the specified workplace requirements.
For the offence of conducting funerals, burials, weddings or any other worship services in contravention of any Orders in force, the fixed penalty is $100,000.
Anyone who operates a hotel or resort that is not licensed under the Tourist Board Act, certified by the Tourism Product Development Company, or located within the Resilient Corridors could face a penalty of $500,000.
This fine also applies to any hotel or resort, nightclub or amusement park that breaches the COVID-19 protocols, and to any nightclub, amusement park or water attraction that is operated when it is ordered closed.