Can Jamaicans be banned from Jamaica?
Short answer: No.
Inhale, exhale, and we’re done!
Well…not really.
Can Jamaicans be Banned From Jamaica?
The rest of this post is a longer assessment of a complex issue not often discussed in the context of the Jamaican Constitution: Can we ban Jamaicans from coming into Jamaica?
The discussion started when Jamaicans in China asked to come home to Jamaica at the start of the COVID-19 epidemic in China in early January 2020.
Those stories included those of Norville Belvett in the Jamaica Observer, Akara Goldson, shared on “Beyond the Headlines” with journalist Dionne Jackson-Miller, and the account in The Star of Shelly-Ann Brooks.
Below is a snippet of the terror of being in China at the start of COVID-19 shared by Akara Goldson.
Tweet by journalist and host of “Beyond the Headlines” Dionne Jackson-Miller recounting the experience of Jamaican Akara Goldson.
Each of these Jamaican citizens were in China and expressed fear and concern about contracting the virus. They wanted to come home.
On January 30, 2020, the World Health Organization (WHO) declared the novel coronavirus discovered in China a Public Health Emergency of International Concern.
On February 11, the WHO then named the disease caused by the new coronavirus "COVID-19", and the new coronavirus SARS-CoV-2.
On March 11, the much more serious decision was made by the WHO to characterize COVID-19 as a pandemic.
The WHO says a pandemic is the worldwide spread of a new disease and you can read more about them here.
WHO tweets characterizing COVID-19 as a pandemic.
On the heels of all of this then were discussions as to whether Jamaican citizens in China at the epicenter of the outbreak or any Jamaican citizens outside of the country, having left Jamaica, had a right to come back into the country during the time of COVID-19 given the rapid spread of the virus.
Recent Developments
Fast forward to March 2020 and the ability to ban overseas nationals from the country was still being discussed as Jamaicans were informed that the sea and airports would be closed from 11:59 p.m. on Saturday, March 21, 2020. Many Jamaicans were supportive of the move but also shocked to discover that they could be barred from their home country. The ban was amended to allow certain categories of persons to come in after that date for a short period of time but, as at April 26, the borders remain closed.
This wasn’t a discussion that had come up for many before the COVID-19 pandemic.
A tweet by The Jamaica Gleaner on the initial closure of the Jamaican borders. The Jamaican Government after amended the blanket closure and indicated a window of exemption for some workers to make their way back into the country.
It is now April and in the last few days, we have had two more instances that have once again had Jamaicans discuss the rights of persons to enter the country.
The case of the 43 crew Jamaican crew members aboard the Marella Discovery 2, a cruise ship that had not been granted permission to enter Jamaican seaports on Thursday, April 2, 2020, and Friday, April 3, 2020, due to the closure of the ports and the concerns about the spread COVID-19. Portugal subsequently refused landing rights to the vessel and there are now plans to bring them back home to Jamaica.
President Donald Trump of the United States issued a Memorandum on April 10, 2020, indicating that countries that failed to take their nationals that were being deported because they had COVID-19 concerns risked visa sanctions. The Jamaican government indicated that they were attempting to determine how to best receive those persons during the pandemic. Reports are that the Involuntarily Returned Migrants (often called ‘deportees’) were to arrive in Jamaica on April 21.
Excerpt from the April 10, 2020 Presidential Memorandum on Visa Sanctions
But does the Jamaican Constitution allow for what has been requested by some individuals here in the country, that these people, as Jamaican citizens, be banned from coming back to Jamaica?
Contents
What the Constitution Says: Citizenship
Who can be deprived of Citizenship
What The Constitution Says: The Charter of Fundamental Rights and Freedoms
Protecting Jamaicans at Home AND Protecting Jamaicans Abroad
Constitutional Guidelines For Limitations Are Very A Good Thing
A Jodi Note - There is a Typo In the Charter of Fundamental Rights and Freedoms
Coming Back Into Jamaica Is A Right Without Limitation, Moving Around Isn't
The Granddaddy of Limitations: Public Emergency and Public Disaster Exceptions
Should a Period of Public Disaster be Declared because of COVID-19?
January positions
April positions
Application for Redress: How to Fix It If Things Go Wrong
Other Important Questions
What the Constitution says: Citizenship
The Jamaican Constitution is THE document that governs how Jamaica is run and organised.
While I have issues with the fact that it is the 1962 version of this that we are working with, a version that is not patriated, i.e. it has not received massive input from the people of Jamaica, it is our Constitution.
So, let’s begin.
The Constitution starts off in Chapter II by discussing citizenship. Chapter I discusses the interpretation of terms in the Constitution and is pretty much the dictionary. It is important but isn’t where the excitement begins. The excitement begins in Chapter II.
Chapter II is the citizenship component of the Constitution and in physical order comes before the rights of persons who are Jamaican citizens, highlighting for me, therefore, the importance of citizenship.
It shows that it is a document for the citizens of Jamaica and that these people who call themselves Jamaicans organised their government structures for and conferred rights on those citizens.
Who can be deprived of citizenship?
Section 3 of the Constitution outlines the most basic ways in which a person can acquire Jamaican citizenship and section 3(1) gives the most basic rundown.
A nice and basic list of who can become a Jamaican citizen under section 3(1) of the Jamaican Constitution.
The Constitution goes on to indicate additional categories of persons or additional requirements in the rest of section 3 as well as sections 3A, 3B, 3C, 4, and 7 (I didn’t skip numbers, sections 5 and 6 have been repealed).
Deprivation, however, is the critical part here.
Section 8(1) tells the tale.
Section 8(1) of the Jamaican Constitution dealing with who can be deprived of citizenship.
If nothing else, the Constitution is helpful and explicit.
Those who gain Jamaican citizenship by birth, descent, or upon marriage cannot be deprived of their Jamaican citizenship!
Under the Jamaican Constitution, therefore, inside the very foundational Chapter II, it says that you cannot be deprived of citizenship if you fall in the three protected categories. Once you are in under those, you’re safe!
You’re still a citizen. And who knows, maybe you can get citizen benefits. Like getting to come into your own country.
What The Constitution Says: The Charter of Fundamental Rights and Freedoms
The next chapter in the Constitution is Chapter III, the Charter of Fundamental Rights and Freedoms (the Charter).
The Charter was added to the Jamaican Constitution in 2011 and has been transformational in the way we can now deal with rights protection in Jamaica.
Under section 13 of the Charter citizens of the country are afforded protection and the State, as constituted by this country called ‘Jamaica’, has the obligation to promote, respect, protect, and fulfill those rights.
It is also within this section that we see citizenship connected with both fundamental rights and the concept of Jamaica being a “free and democratic society”.
Section 13(1) of the Jamaican Constitution which starts off Chapter III - The Charter of Fundamental Rights and Freedoms.
The State, under 13(1), not only has the obligation to promote and observe human rights and freedoms, all persons have a right to prevent these rights from being encroached, and people have a one to one level of responsibility to respect and uphold the rights of others under the Charter.
Big proviso though. This is to the extent that “those rights and freedoms do not prejudice the rights and freedoms of others”.
Protecting Jamaicans at Home AND Protecting Jamaicans Abroad
Section 13(1) is critical because of the ongoing discussions centred around depriving Jamaicans overseas of the opportunity to come back home is in the context of other Jamaicans, many of those physically residing in Jamaica, saying they don’t want them to be home and they feel they don’t have a right to be home.
Under the Jamaican Constitution, they absolutely can come home.
There is, however, a balance to be struck because of the proviso. Jamaicans at home can’t bar them from coming and prevent them from enjoying their Constitutional rights but Jamaicans abroad aren’t allowed to come home and present a public health risk to everyone in the country.
Jamaicans at home can’t bar them from coming and prevent them from enjoying their Constitutional rights but Jamaicans abroad aren’t allowed to come home and present a public health risk to everyone in the country.
Constitutional Guidelines For Limitations Are Very A Good Thing
There are however limitations and all constitutional provisions should have limitations. Everything cannot be open and widely permitted.
What section 13(2) however provides is a clear mindset as to rights protection and a process to limit rights only where necessary and only to the degree necessary.
Section 13(2) makes it clear that all the rights and freedoms are GUARANTEED and that Parliament cannot pass laws to limit them nor can State organs can repeal them, limit them, or infringe them without complying with sections 13(9) and 13(12) as well as sections 18 (we’ll get to section 18 in a minute) and 49 of the Constitution.
It goes further however and provides another bar. The actions are only permitted if they may be “demonstrably justified in a free and democratic society”.
Section 13(2) of the Jamaican Constitution.
The Constitutional requirement that any limitation must be "demonstrably justified in a free and democratic society" is a high bar. In Robinson v AG of Jamaica, a beautiful judgment that represents the best and clearest thinking on how to interpret the Charter, Jamaica’s Constitutional Court in paragraph 203 of the judgment set out the proper approach adjudication on the constitutionality of legislation in the Charter.
Useful reading.
So if you can’t lose your right to citizenship under section 3(1) of the Constitution and you have rights under the Charter as a citizen you should be able to fully enjoy all the rights and freedoms provided. And that includes the right to come back home.
A Jodi Note - There is a Typo In the Charter of Fundamental Rights and Freedoms
There is a typo in Jamaica’s good good Constitution.
Section 13(2) says that the rights sections are subject to sections 18 and 49 of the Constitution. Referring to section 18 however, makes absolutely no sense.
Section 18 refers to the “Status of Marriage”. Why would we even care about the status of marriage when discussing Constitutional limitations?!
We don’t.
I think they meant to refer to section 19 of the Constitution that speaks to the oversight of the Courts if there is an allegation of a breach of the Constitution to match section 49 which speaks of Parliament’s powers to amend the Constitution.
Hope we fix that soon.
Edit: My friends and I are discussing this. Maybe there isn't a typo. I may have to look into this again.
Coming Back Into Jamaica Is A Right Without Limitation, Moving Around Isn't
Those are your rights. That's it.
You can always come back home.
Oddly enough though, we had been laughed at (my words, not his) by Sir Fred Phillips in Commonwealth Caribbean Constitutional Law [pg. 103] for our previous version of this section because it did not provide a right to leave the country. Glad we fixed that!
The section now reads:
3. The rights and freedoms referred to in subsection (2) are as follows -
Section 13(3)(f) of the Jamaican Constitution
These are critically important sections to consider together.
Why?
Well, the citizen's right to enter Jamaica is separated from any lawful limitations to move around inside. Those are two separate provisions.
While they are together, the citizen of Jamaica can enter the country but you may not be permitted to move around once you enter. Those are important because it means then that your right to enter has nothing to do with your right to be able to go around.
Why do I say that?
The Constitution again!
The section that most closely relates to section 13(3)(f) of the Jamaican Constitution when we consider freedom of the person or freedom of movement is section 14 of the Constitution.
Section 14 of the Jamaican Constitution
Take a close look at the entire section. Nothing in there prevents a Jamaican citizen from coming into the country.
Nothing.
It does, however, make provision under 14(h)(i) for persons who come in to be detained to prevent the spread of an “infectious or contagious disease constitution a serious threat to public health”.
Section 14(h)(i) of the Jamaican Constitution
That’s it.
And well, given that we are talking about something that may be harmful to the rest of the population since SARS-CoV-2 is highly contagious, you want to make sure that people are able to be quarantined or detained, even when granted entry.
You also want those who may have to be detained or quarantined to have the right under 13(3)(h), that is, "the right to equitable and humane treatment by any public authority in the exercise of any function".
So even if they are going to be deprived of their liberty as has been discussed in quarantining these individuals, there is a responsibility for there to be humane treatment.
The Constitution though goes on in section 13(4) to discuss that this Chapter applies to all the Legislature, the Executive, and all public authorities, making it very clear it is meant to be one of universal application here in Jamaica.
The Granddaddy of Limitations: Public Emergency and Public Disaster Exceptions
The Constitution is fun (YAY!) and says even more about which rights can be suspended and how that can be done.
Section 13(9) of the Jamaican Constitution.
We already know section 13(f), that’s our handy “right to freedom of movement” section above that speaks to Jamaicans coming into the country and moving around.
And we already know section 14 which speaks to the protection of the freedom of the person.
Section 16(3), however, is new. That section speaks to the protection of the right to due process and states that all proceedings of every court which determines a person’s rights are to be held in public with a couple of exceptions under 16(4).
Look closely under section 13(9) though. It says the measures relating to detention or limitations to freedom of movement must be "reasonably justified" for specific situations.
And the section lists two.
Those under a "public emergency" or a "public disaster".
Those last two don't just mean anything. They are so important that the Constitution goes on to define them.
Can't have any and everything drop into those provisions, can we!
"Public disaster" and "public emergency" are defined in the Jamaican Constitution and that definition section is at the end of Chapter III where, in section 20(1), it interprets the terms.
The definition of “period of public disaster” under section 20(1) of the Jamaican Constitution.
This definition seems to be a circle of uselessness. A period of public disaster is whenever the Governor-General says it is a period...of...public...disaster.
Wild.
Definition of “period of public emergency” under section 20(1) of the Jamaican Constitution.
At least “period of public emergency” has more words though. And well, kinda makes more sense.
Kinda.
There is further clarification though as to what should properly constitute a period of public disaster.
That proclamation by the Governor-General has to be a real proclamation and can only be real if it meets the requirements in section 20(2).
Section 20(2) of the Jamaican Constitution dealing with periods of public disaster and periods of public emergency.
Section 20(2)(b) could potentially be utilized to quarantine Jamaican citizens who return to the country on the basis that SARS-CoV-2 which causes COVID-19, based on its highly contagious nature, is of such that it is "of such a nature and on so extensive a scale as to be likely to endanger the public safety".
[Jodi’s January Position]
This would then be the section that would be best since it talks about the likelihood of a spread and the need to prevent it as opposed to it already being in the country.
Section 20(2)(c) could be used, however, if the spread of the coronavirus becomes a national health emergency. It has the words "infectious disease or other calamity, whether similar to the foregoing or not" right there!
Well, we could quibble on whether a 'virus' is a 'disease' but, that's for another time. The provision though is broad enough to cover the coronavirus.
[Jodi’s April Position]
Naah, the WHO has distinguished the virus from the disease. We’re fine.
The Jamaican Constitution, therefore, provides a mechanism to prevent the spread of the coronavirus before it gets into the country [s 20(2)(b)], when it gets here but is not yet a national public health emergency [s 20(2)(b)], and after it becomes a national crisis [s 20(2)(c)].
Should a Period of Public Disaster be Declared because of COVID-19?
[Jodi’s January Position]
I don't think it should be.
I think it is unlikely that, as it currently stands, not one case has been discovered in the Caribbean, that it will be difficult to show that it is "demonstrably justified in a democratic society" to declare that there is a public disaster.
Jamaica is currently in the middle of a Dengue outbreak with at least 81 individuals already dead as a result of the mosquito-borne disease.
If that situation, inside Jamaica, has not led to a declaration of public disaster, I think it would be premature, at this time, to label the coronavirus one just yet.
Given that
1) there have been no deaths as a result of COVID-19 and the outbreak of infectious disease "or other calamity" has not been a ground for a public disaster; and
2) we have had other public health emergencies in the island like Dengue, Chikungunya, and Zika that have not had declarations of this sort,
I think this does not yet meet the criteria in Jamaica.
The global health emergency, as declared by the World Health Organisation, is not the same as a local emergency requiring these provisions.
Even if, however, an individual is to be quarantined and they are to be limited as to where they can go and what they can do, it is important that we distinguish the ability of Jamaicans being allowed into the country and their freedom of movement.
[Jodi’s April Position]
Yes.
In the spirit of Great Debates, Constitutional heavyweights Dr. Lloyd Barnett and Michael Hylton Q.C. have been public about their positions on the need for a period of public disaster to be declared as the Government of Jamaica has limited freedom of movement and freedom of assembly, among other rights, to stem the spread of COVID-19.
Dr. Lloyd Barnett and the Independent Jamaica Council for Human Rights (IJCHR) said on March 27 that the Government’s COVID-19 response ignored the Constitution of Jamaica. Queen’s Counsel Michael Hylton 2 days later disagreed with Dr. Barnett and said that in his view “the Constitution does not require or even envisage, that the Government must implement that process” of declaring a period of public disaster or period of public emergency. On March 31, Dr. Barnett responded to Hylton Q.C. and said this is argument was “illogical, because the particular circumstances are precisely what the emergency provisions provide for.”
In this, I am more convinced by the arguments of Dr. Barnett. It jives with what I have also been able to find in the Constitution which, to my mind, provides for what is to be done in the present circumstances. Ordinary legislation cannot do what the Constitution does not allow.
Application for Redress: How to Fix It If Things Go Wrong
While Jamaicans should be allowed into the country, it may lead to them being deprived of freedom of movement.
Sections 13(9), (10), and (11) set out the boundaries of the detention of persons.
Sections 13(9), (10), and (11) of the Jamaican Constitution.
Section 13(9) refers explicitly to section 13(3)(f). Remember, that's our awesome section that allows two different things: a) it allows citizens the right to enter Jamaica; and b) it allows those lawfully within Jamaica the right to freely move around, reside in, and leave the country.
If you are going to be detained, or if there is any restriction, you may request a review of it and you can go before the tribunals under section 13(10).
Section 13(11) then makes sure you can have a review by the tribunals.
That's important!
Keeping Jamaicans safe is a critical part of being able to take these sorts of steps.
We have to consider that this is important for us to ensure that the public health and safety of everyone is protected.
Why?
Section 13(1) of the Constitution says that you can enjoy the rights and freedoms under the constitution to the extent that those rights and freedoms do not prejudice the rights and freedoms of others.
So, your right and freedom to come into the country is not prejudiced, you can come in. But, your need for quarantine or some sort of detention is an important part of us considering the rights of everyone else in the country.
So, what do you do if you think there has been a breach of your Constitutional rights?
You have the right to appeal and go before the courts of Jamaica.
Any person though who is arrested or detained has the right to communicate with their spouse under section 14(2)(a), to get the reasons for their detention under 14(2)(b), and to "communicate with and retain an attorney-at-law" under 14(2)(d).
The last one may be a provision that is limited only to those who are arrested and not detained (as is potentially 14(2)(c) above it which speaks of being charged with an offence) but we may still allow for that to be considered based on the wording.
At the end of Chapter III, however, it provides that for an application for redress.
Section 19 of the Jamaican Constitution dealing with the right to redress breaches of fundamental rights and freedoms.
First, section 19(1) allows applications to be made after a constitutional right "has been", or where there it is "likely to be contravened" and permits applicants to go to the Supreme Court for redress.
So, where someone believes they are likely to be barred from coming into Jamaica but they believe that the Constitution does not support such a reading, they can go before the Supreme Court of Jamaica.
And if you don't like what the Supreme Court says?
Section 19(5) says you can then appeal to the Court of Appeal.
This is important for us to see that barring Jamaicans may not be possible under the Jamaican Constitution.
They can be limited or detained or quarantined if they are back in the island but they cannot be barred.
Other Important Questions:
Two more questions arise from this:
1) Do you lose the rights of Jamaican citizenship if you are overseas and abroad for some time but are still a citizen?
In this particular case, the individuals at the start of this controversy were mostly students. If they are there in China under agreements between the Government of the People's Republic of China and the Government of Jamaica, they are going to study to likely come back to Jamaica and use those learnings to develop Jamaica.
There may then be a continuous responsibility on the part of the Government of Jamaica to these individuals.
If they are individuals who had lived overseas and want to come back to Jamaica and have given money or time to those foreign countries, do they lose citizenship in Jamaica? As has clearly been seen, you don't lose your Jamaican citizenship.
Statelessness is a global problem and a scourge and Jamaica has brilliantly decided not to be part of the problem but instead, be part of the solution to not leave any citizen stateless.
2) Is there any positive obligation on the State of Jamaica to go and collect these individuals and bring them back to Jamaica?
Nothing in the Jamaican Constitution indicates to me that such a thing is required. I can find nothing that says that Jamaica has a positive obligation to go collect individuals and bring them back.
I will say, however, given the circumstances in this particular case with many of these students allegedly going there under agreements between the two governments for them to go to China, learn, then come back to Jamaica, they may claim they are now exposed to a situation that may constitute "torture" since they are allegedly being left to watch dwindling food resources and they must live in terror that a virus that has infected millions has them next in its sights.
That’s all for now! See you in my next dispatch!
