1.  Jamaica is a constitutional monarchy and a parliamentary democracy. Queen Elizabeth II, the United Kingdom (UK) monarch, is the Head of State and is represented by a Governor General whose role is largely ceremonial. The Constitution of Jamaica is the supreme law and came into force in August 1962, when the island became the first country in the Caribbean to gain independence from the UK.¹²

2.  The Parliament is bicameral and tripartite. It comprises an elected House of Representatives, a nominated Senate, and the Head of State. The House of Representatives is made up of 63 elected members and the Senate has 21 members, 13 of whom are appointed on the advice of the Prime Minister and 8 on the advice of the Leader of the Opposition.¹³ The Constitution in section 48 vests Parliament with the power to make laws for ‘the peace, order and good government of Jamaica.’ Parliament can delegate law-making power to the executive branch, but it must maintain effective control over the power.

3.  The effective head of the executive branch is the Prime Minister, who, with a Cabinet, has the general control of the Government and is collectively responsible to the Parliament.¹⁴ There is an overlap between the legislative and executive branches. The Prime Minister is the member of the House of Representatives who is best able to command the confidence of a majority of the members of that House. The members of the Cabinet are all appointed on the advice of the Prime Minister and must be either members of the House of Representatives or the Senate, except for the Attorney General.

4.  The Governor General must also appoint a Leader of the Opposition. Section 80 of the Constitution provides that this is the member of the House of Representatives who the Governor General thinks is best able to command the support of a majority of those members who do not support the Government.

5.  As a unitary state, health protection is primarily the responsibility of central government, though some health-related functions are undertaken by 14 local government authorities operating at the parish level, including public cleaning, and managing and maintaining infrastructure and public facilities such as drains, gullies, markets, and cemeteries. There are 227 elected councillors serving in the municipalities across the island and the municipalities have the power to make by-laws, regulations, and rules for the good governance of the parish.¹⁵

6.  The judicial branch comprises courts with both civil and criminal jurisdiction. Parish Courts serve all 14 parishes and generally hear summary matters. The Supreme Court and the Court of Appeal are superior courts and final appeals are heard by the Judicial Committee of the Privy Council based in London. The Supreme Court has original jurisdiction to review laws, including delegated legislation, and executive action to determine their consistency with the Constitution, including its chapter 3, the Charter of Fundamental Rights and Freedoms.

7.  The basic constitutional structure of the state has not changed in response to the pandemic. However, there has been a significant increase in delegated legislation made by the Prime Minister under section 26 of the Disaster Risk Management Act 2015 (DRMA).¹⁶

The Constitution¹⁷ provides that the Governor General may declare a state of public emergency if a period of public disaster has arisen as a result of the occurrence of any outbreak of infectious disease, among other reasons.¹⁸ The Governor General is constitutionally required to act in accordance with the advice of Cabinet or a relevant minister in the performance of such functions.¹⁹ Following the proclamation, a state of public emergency can remain in effect for up to 14 days.²⁰ It can be extended by a resolution supported by a two-thirds majority of all the members of each House for up to three months in each instance. The Government must secure bipartisan support in the Senate for extensions because its 13 seats in the Senate are less than the two-thirds majority required for extensions.

8.  Since 2018, states of public emergency have been proclaimed in various communities in response to high rates of serious crime. Several of these continued after the beginning of the pandemic.²¹ Bipartisan support for extensions of these emergencies has not always been forthcoming,²² and some detainees have succeeded in challenging their indefinite detentions under one such emergency period.²³

9.  During a state of emergency, the State can introduce measures pursuant to regulations made under the Emergency Powers Act 1938,²⁴ which limit freedom of movement, liberty, and the right to a public hearing if those measures are reasonably justifiable for dealing with the emergency situation.²⁵ In respect of other rights, the general limitations clause applies such that limitations on those rights must be demonstrably justifiable in a free and democratic society.²⁶ In both cases, the Supreme Court has original jurisdiction to determine the constitutionality of restrictions of rights recognized in the Charter of Fundamental Rights and Freedoms.²⁷ The Supreme Court also has jurisdiction to determine if the decision to proclaim or to extend a state of public emergency is based on one of the purposes specified in the Charter.²⁸ The Emergency Powers Act requires emergency regulations made during a state of emergency by the Governor General to be subject to affirmative resolution without which they expire after seven days. However, this is not a requirement in the Constitution of Jamaica.²⁹

10.  The Government in Jamaica opted not to declare a state of public emergency in response to the pandemic and instead used the 2015 DRMA. In principle, the DRMA and delegated legislation made under it must conform with the Constitution. This includes the implied doctrine of separation of powers as well as the Charter of Fundamental Rights and Freedoms and its prescription that limits on rights must be demonstrably justifiable in a free and democratic society. There was significant debate between jurists about whether the Constitution required the Government to use the public emergency mechanism for its Covid-19 measures. The debate centred on the adequacy of either mechanism in safeguarding rights and providing a check on the executive’s expansive delegated law-making. Given the uncertainty captured in the debate about the constitutionality of managing the pandemic without resort to a state of emergency, as well as the fact that there were already states of emergencies in place in various areas, the Parliamentary Opposition called on the executive to utilize the emergency regime, but indicated that it would not mount a challenge to the approach chosen by the Government.³⁰

11.  Jamaica is a party to several human rights treaties which are relevant to its response to the pandemic. These include the American Convention on Human Rights (ACHR), International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR), Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), Convention on the Rights of the Child (CRC), and the Convention on the Rights of Persons with Disabilities (CRPD). Jamaica had not entered any derogations under the ACHR or ICCPR at the time of writing.³¹ Jamaica is also part of a treaty-established regional arrangement known as the Caribbean Public Health Agency (CARPHA).³² The latter is the mechanism through which Caribbean states have accessed the COVAX Facility.³³

12.  Generally, Jamaican courts take a dualist approach to resolving conflicts between domestic and international law obligations. For treaty obligations to be directly enforceable before domestic courts, the legislature must incorporate them into domestic law. If the Constitution is open to more than one interpretation, judges should adopt the interpretation that is consistent with Jamaica’s international treaty obligations, even if the treaty is not incorporated into domestic law.³⁴ In addition, courts routinely refer to international law as persuasive precedent when interpreting the Constitution.³⁵

13.  Jamaica has not implemented the World Health Organization’s (WHO) International Health Regulations (IHRs) 2005 through legislation. However, it has relied heavily on the WHO’s recommendations on infection prevention and control in establishing mandates for mask wearing, sanitization, physical distancing, and guidelines for re-opening public facilities.³⁶

14.  The Government relied almost exclusively on the provisions of the DRMA for making delegated legislation in the management of the pandemic.³⁷ First, the Office of Disaster Preparedness and Emergency Management (ODPEM) must submit a report to the relevant cabinet minister that there is a local condition in the country tending to endanger public safety or a part of the country is threatened with or affected by a natural or anthropogenic hazard, and that measures to address this should be taken promptly.³⁸ Then the relevant Minister must give written notice to the Prime Minister who can declare a part or whole of Jamaica to be a disaster area.³⁹

15.  If the Prime Minister is satisfied that a disaster has occurred, is occurring, or is imminent, and that extraordinary measures are required to prevent or minimize loss of life, prejudice to the safety, or harm to the health of persons, they can make further orders.⁴⁰ Those orders can direct the enforcement of measures to remove or guard against the disaster or its consequences, or to mitigate the disaster.⁴¹ The Prime Minister’s orders under the DRMA are effective if published in a daily newspaper circulating in Jamaica or other broadcast media.⁴² The orders remain in force until the time specified in the instrument.⁴³

16.  The government relied on the Public Health Act to institute a few measures as it transitioned away from promulgating Covid-19 measures.⁴⁴ The Public Health Act authorises the relevant Minister to prohibit the assembly of persons and order closure of public spaces or schools.⁴⁵ Additionally, it allows the Minister, by order, to direct the enforcement of any measures recommended by the Central Health Committee or by a Local Board, in response to an apparent threat to any part of the island in the form any communicable disease of epidemic proportions.⁴⁶ In either case, the relevant Minister is the person charged for the time being with responsibility for the department or subject to which the context in the legislation refers.⁴⁷

17.  As noted in Part II.A above, the Parliamentary Opposition urged the Government to manage the pandemic under the framework of a state of public emergency.

18.  The Quarantine Act⁴⁸ and Emergency Powers Act⁴⁹ are other statutes with some relevance to managing a pandemic. The 1951 Quarantine Act establishes a Quarantine Authority and gives the relevant Minister the power to make regulations to address infections and public health risks arising from ships and aircraft. The Emergency Powers Act is applicable only under a declared state of public emergency and it authorizes the Governor General to make regulations to manage the emergency situation.

19.  Executive rule-making powers in the form of delegated legislation played a preponderant role in providing rules for dealing with the pandemic. Measures vary in length, and some lasted as little as one to two weeks.⁵⁰ In some instances measures ceased to apply based on the use of sunset provisions. In others, measures ceased to apply having been overtaken by other measures in subsequent orders. With multiple iterations in different orders, some measures like restrictions on gatherings remained in force since 18 March 2020.⁵¹

20.  Thus far, there have been no legal challenges to the measures in the DRMA orders. They are open to judicial scrutiny for their conformity to the scope of the delegated powers provided in the parent legislation, the DRMA, and administrative law principles of reasonableness and fairness. They are also open to judicial scrutiny for their conformity with the Charter of Fundamental Rights and Freedoms and implied constitutional principle of the rule of law. The doctrine of the rule of law includes the principle of legal certainty.⁵² Although the doctrine of legal certainty is not very well developed in Jamaican constitutional law, the latter borrows frequently from European human rights law in which legal certainty includes the principle that laws should be adequately accessible.⁵³

21.  The Ministry of Health and Wellness provides most Covid-19 guidelines and protocols.⁵⁴ Some are incorporated by reference into orders and thus made enforceable under the DRMA.⁵⁵ No significant divergence between official guidance and the law was identified.

22.  The Parliament has a role in ongoing oversight over the regulation or order making powers of the Government only if so provided for by the parent statute. Some statutes require regulations or orders to be subject to resolutions of each House of Parliament or a resolution of the House of Representatives.⁵⁶ Where delegated legislation is subject to an affirmative resolution, this means that the regulations do not come into effect until affirmed by a resolution of both Houses or the House of Representatives as specified.⁵⁷ Where delegated legislation is subject to a negative resolution, those regulations are to be laid before each House of Parliament or, where so specified, the House of Representatives. Either House or the House of Representatives can within a specified period annul the regulations, otherwise the regulations are valid.⁵⁸ Both give notice to the lawmakers and an opportunity to consider the delegated legislation. The DRMA does not include any of these oversight mechanisms in respect of the orders made by the Prime Minister in exercise of their power under section 26. However, Parliament can terminate the power through ordinary legislation. This is usually done through an amendment to the primary legislation.

23.  The separation of powers doctrine in the Anglophone Caribbean requires Parliament to maintain effective control over delegated legislation through guidelines or a policy for the exercise of the power in the parent legislation, but the doctrine has not been understood to demand parliamentary oversight of delegated legislation.⁵⁹

24.  There is a more general power to make regulations under the DRMA, outside of a declaration by the Prime Minister of a disaster and related orders made by the Prime Minister. These regulations require an affirmative resolution by Parliament.⁶⁰ The Act also provides that the DRMA must be reviewed by a joint select committee of both Houses of Parliament no later than three years after its introduction.⁶¹ No such review has taken place to date.

25.  It was recommended that the DRMA be amended to include parliamentary oversight over orders made by the Prime Minister. However, although the amendments extend the law-making powers of the Prime Minister to the creation of new offences, they do not introduce greater parliamentary oversight.⁶²

26.  The only parliamentary oversight afforded in the DRMA orders so far has been voluntary. Since April 2020, the Prime Minister brought the new measures before Parliament and gave parliamentarians an opportunity to ask questions and offer comments. In some instances, those discussions led to amendments to the orders and the amended form was gazetted. However, scrutiny of the pandemic measures was impaired by the failure on several occasions to circulate copies of the relevant DRMA order to parliamentarians prior to the discussion in Parliament.⁶³

27.  In March 2020, an eight-member bipartisan Special Select Committee of the House of Representatives of Parliament was established to oversee the Government’s response to the pandemic, chaired by the Minister of Health and Wellness.⁶⁴ The Committee includes five Government parliamentarians, including the chair and the Attorney General, and three Opposition parliamentarians. It had been the practice for about a decade to have Opposition parliamentarians chair key parliamentary oversight committees to strengthen accountability.⁶⁵ The departure from that practice was criticised by members of the Parliamentary Opposition who argued that it served to weaken parliamentary oversight of the executive.⁶⁶

28.  The Special Select Committee’s oversight work focused primarily on matters within the remit of the Ministry of Health and Wellness, such as public health measures, testing, infection rates, treatment protocols, and vaccination. The pandemic measures extend well beyond this focus to include, for example, matters related to law enforcement, social protection, and access to education and courts. The Committee has yet to publish any reports.

29.  Both Houses of Parliament continued to meet regularly in person during the period. Temperature checking machines were installed at the entrances to the building and parliamentary chamber, sanitization stations were installed at various locations in the building, the parliamentary chamber was retrofitted with glass screens for Covid-19 health and safety, and seats were placed three feet apart. There were no virtual nor any hybrid sittings of either of the two Houses. Sittings of each chamber as well as sittings of parliamentary committees have been broadcast live via YouTube, as is the usual practice.⁶⁷

30.  Several oversight and select parliamentary committees, including the Special Select Committee on Covid-19, met virtually during the pandemic.⁶⁸ The Standing Orders for the House of Representatives provide that such committees can meet at such time and place as determined by the Speaker for the first meeting and the committee for subsequent meetings.⁶⁹ The Senate Standing Orders Committee amended the Standing Orders to permit virtual meetings of its committees.⁷⁰

31.  After the September 2020 general elections, the Prime Minister broke the tradition of allowing key parliamentary oversight committees to be chaired by opposition parliamentarians. Three of the four standing oversight parliamentary committees chaired by Government parliamentarians failed to meet during the four months following the elections.⁷¹ Concerns were also raised by members of the Parliamentary Opposition about the failure to reconstitute the Covid-19 Special Select Committee for four months following the September 2020 general elections.⁷²

32.  Parliament was recalled from the summer recess ahead of the September 2020 general elections to obtain approval to end existing states of public emergency responding to high levels of serious crime.⁷³ Parliament was dissolved on 13 August 2020 and the general elections were held on 3 September 2020.⁷⁴ The new House of Representatives and Senate were sworn in on 15 September 2020 at the Jamaica Conference Centre, which temporarily housed Parliament for a few weeks while the permanent seat of Parliament at Gordon House was retrofitted for Covid-19 health and safety. There is no indication that the temporary move adversely impacted the legislature’s functioning. Parliament then went on Christmas break on 15 December 2020 and resumed on 12 January 2021. It was prorogued on 16 February 2021 ahead of the new fiscal year, which began with the Ceremonial Opening of Parliament on 18 February 2021.

33.  There was a brief closure of the courts in Jamaica between 13 and 16 March 2020.⁷⁵ Thereafter, the various courts had different operational procedures. The ongoing operation of the superior courts was provided for through multiple practice directions issued by the Chief Justice in respect of the Supreme Court and President of the Court of Appeal in relation to the appellate court.⁷⁶ Policy directives were also issued by the Court Administration Division, a Government department that answers to the Chief Justice, in respect of the summary jurisdiction of the Parish Courts.

34.  Most proceedings in the Court of Appeal have been conducted online since March 2020.⁷⁷ Online proceedings have taken place in a range of criminal and civil matters in the Supreme Court since March 2020 with a slow re-introduction of some in-person proceedings and a shift from facilitating to requiring online proceedings in others.

35.  Following the initial closure of the Supreme Court, provision was made for emergency civil and criminal matters to be dealt with in remote hearings.⁷⁸ Emergency criminal matters included applications for bail or habeas corpus and where a child was charged with a criminal offence.⁷⁹ Emergency civil matters included cases involving the custody of children or expiration of limitation periods, or that were deemed by a judge to be an emergency upon application supported by affidavit.⁸⁰

36.  Hearings in open court and in person trials in chambers were permitted in civil matters in the Supreme Court from July 2020 if they involved three or fewer parties, did not involve giving viva voce evidence, and featured no more than six attorneys.⁸¹ From September 2020, this limitation on the number of parties and attorneys involved in the dispute was removed.⁸² In civil cases where evidence is required to be given, provision is made for witnesses to do so remotely.⁸³ Online proceedings are now required for the delivery of civil judgments in the Supreme Court, unless the judge decides otherwise.⁸⁴ They are also used for interim proceedings in the revenue and commercial divisions and in all civil matters before a Master in chambers.⁸⁵ Online proceedings can also be used for in-chamber hearings.⁸⁶

37.  In-person, non-jury trials were permitted from June 2020 if no more than two defendants were involved.⁸⁷ Remote hearings were permitted for handing down sentences and encouraged for non-jury trial of persons in custody.⁸⁸ From September 2020, all judge-alone trials were permitted in person.⁸⁹ In these trials, remote participation by persons in custody is possible if such persons intended to plead guilty, the prosecution intends to offer no evidence, or it is a sentencing hearing.⁹⁰ Proceedings are done remotely where it involves case management, unless the judge orders otherwise, and attorneys are allowed to appear remotely for sentencing hearings.⁹¹

38.  Jury trials in the Supreme Court are required for several serious criminal offences, such as homicides. All jury trials were suspended in March 2020 at the beginning of the pandemic.⁹² Dates for the resumption of jury trials in different geographical locations around Jamaica were announced in January 2021.⁹³ The commencement of these trials was suspended a few weeks later.⁹⁴ Subsequent attempts at resuming jury trials were abandoned and the latest practice directions on the subject indicate that jury trials are suspended until further notice.⁹⁵ In 2015, the Criminal Justice (Administration) Act was amended to allow jury trials to be heard by a judge alone if the prosecution and the accused so agree.⁹⁶ The Chief Justice has encouraged the use of judge alone trials as a means of continuing cases while jury trials are suspended.⁹⁷

39.  The suspension of jury trials raises questions about the constitutional right to due process, which includes a criminal trial within a reasonable time.⁹⁸ In 2018, the Supreme Court adopted an analytical framework to interpret reasonable time in which trial delays occasioned by periods of emergencies or natural disasters would not count against the state.⁹⁹ When jury trials resume, superior courts will likely have to determine the implications of the pandemic delays on the due process right in various criminal jury trials.

40.  Online proceedings in the superior courts are generally conducted via Zoom. The practice directions provide that the Registry gives the electronic access link directly to the parties and those expected at the sittings, and that such links should not be distributed to others.¹⁰⁰ The preamble to the Supreme Court’s Second Emergency Practice Directions acknowledged that the courts in Jamaica operate on the concept of open justice, then stated that the pandemic and measures to contain it ‘placed this concept under stress’, adding that ‘more than ordinary ingenuity will be required to navigate these new circumstances.’¹⁰¹

41.  In June 2020, it was reported that two appellants who appeared before the Court of Appeal in online proceedings filed a challenge to the constitutionality of the hearing on the ground that it was not conducted in public.¹⁰² The Constitution provides that all proceedings relating to the determination of a person’s civil rights and obligations must be held in public.¹⁰³ However, courts can restrict public access to trials where they consider it ‘necessary or expedient’ or in the interests of ‘public safety’.¹⁰⁴ More generally, guaranteed rights can be limited if it is ‘demonstrably justified in a free and democratic society’.¹⁰⁵ Among other things, this demands proportionality between the sufficiently important objective to limit the right and the measures limiting the right.¹⁰⁶ If the reported litigation comes to trial, a major question will be whether the least restrictive measures have been utilized to introduce online proceedings, and, notably, whether any special measures could have been introduced to give some accessibility to the public in online hearings, for example, by publishing the court list and allowing members of the public to approach the court for an invitation to an online hearing as recommended by Legg.¹⁰⁷

42.  The Judicial Committee of the Privy Council, Jamaica’s apex court, has facilitated and encouraged hearings by video-link.¹⁰⁸ The public can access the hearings through a livestream. Two appeals from Jamaica have been heard by the Privy Council remotely during the pandemic.¹⁰⁹

43.  In the summary jurisdiction of the parish courts, in person proceedings were initially suspended until 20 April 2020.¹¹⁰ Matters in relation to domestic violence, maintenance, breaches of the Quarantine Act, and cases involving children were to be treated as emergency matters during the suspension.¹¹¹ These courts have made the least use of online proceedings. The implications of this for peoples access to the Parish Courts have not been fully studied but Parish Courts reported good clearance rates by the end of 2020 despite the pandemic.¹¹² By the end of 2020, 93 per cent of the cases coming in on civil matters were cleared up; an improvement over the pre-Covid-19 period five years earlier.¹¹³ The Parish Courts are used mostly by persons in lower socio-economic groups,¹¹⁴ many of whom have limited access to the internet and technology. This may partly explain why Parish Courts have been effective without moving online. Notably, poor and vulnerable children have suffered ‘learning loss’ with the shift to online teaching and learning because of their limited access to the internet and technology.¹¹⁵

44.  Jamaica does not have a fixed date for its general elections. Each government has a five-year term and the Prime Minister has the discretion to determine an earlier date for general elections.¹¹⁶ On 11 August 2020, the Prime Minister announced that general elections would be held on 3 September 2020, six months before the end of the Government’s five-year term. The timing of the elections and its implications for public health gave rise to significant public debate, especially because there was a spike in Covid-19 infections following two major public holidays in early August.¹¹⁷ Jamaica’s electoral system does not accommodate remote voting. General election campaigns in Jamaica also involve a high degree of in person campaigning and public events.

45.  A DRMA order was issued to regulate the conduct of the election campaign and it limited public events to drive-through processions.¹¹⁸ Groups conducting walkabouts and door to door campaigning were limited to teams of no more than five persons.¹¹⁹ Amidst evidence that the drive-through events did not involve appropriate social distancing, these events were further limited by the Prime Minister but the terms were ambiguous.¹²⁰ On the one hand, the Prime Minister said that political motorcades were banned, but on the other signalled that motorcades could take place with two or less buses and without stopping to greet persons.

46.  All voters were required to wear a mask, submit to a temperature check, wash or sanitize their hands before entering the polling station, and observe physical distancing.¹²¹ The Minister of Health and Wellness initially said Covid-19-positive persons would not be allowed to vote.¹²² There was significant public debate concerning whether Covid-19-positive persons could lawfully be denied the right to vote.¹²³ However, the Prime Minister promulgated a DRMA order shortly before the election, which permitted Covid-19-positive persons to leave isolation to vote during the last hour scheduled for voting.¹²⁴ These persons were required to wear, in addition, a protective mask, a face shield, and gloves.¹²⁵

47.  Voter turnout in September 2020 was the lowest on record since the 1983 general elections, which was boycotted by one of the two major political parties.¹²⁶ Voter turnout has been consistently declining since 1997. Nevertheless, there was a marked drop in turnout from 53.17 per cent in 2011 and 48.37 per cent in 2016, to 37.85 per cent in 2020.¹²⁷ The incumbent Government won a landslide 49 of 63 seats with 57 per cent of the total vote and 21 per cent of the total electorate, having won the previous general elections by a narrow three seat margin.¹²⁸ Voter turnout has been attributed to health concerns as a result of Covid-19 and voter apathy due to persistent crime, poverty, and political corruption.¹²⁹

48.  Local government elections, which were due 29 November 2020, were postponed and are now due by 27 February 2022. Postponement was effected through an amendment to the Representation of the People Act.¹³⁰

49.  The Director General of the Office of Disaster Preparedness and Emergency Management (ODPEM) is responsible for gathering timely and authoritative information concerning the condition and trends in the quality of the natural and physical environment as they relate to the likelihood of disasters in each parish.¹³¹ The Director General must also analyse and interpret that information in order to formulate appropriate responses. ODPEM generates a report which details the hazard to health and safety that must precede the Prime Minister’s disaster area declaration under section 26 of the DRMA. This information is not published.

50.  There have been few restrictions on the work of the press during the pandemic. The orders made under the DRMA, which give details of the nightly curfews, have consistently listed members of the media among the categories of persons exempt from curfews.¹³² One exception occurred in April 2020 when the Government made the parish of St. Catherine a quarantine area and members of the media were not listed as exempt. The Press Association of Jamaica, an independent press freedom watchdog, protested and the position was quickly reversed.¹³³

51.  Weekly virtual press briefings are held by either the Minister of Health or the Office of the Prime Minister, streamed live, and the sessions uploaded onto social media sites for viewing. Questions are taken from the media.

52.  The laws affecting access to information have not been modified or suspended. The Access to Information Appeal Tribunal which hears appeals against the refusal or deferment of access to information held by the state has not met during the period but remained accessible for virtual hearings.¹³⁴

53.  The Auditor General is a constitutionally established office mandated to examine annually the accounts of all Government departments for submission to the Speaker of the House of Representatives.¹³⁵ The Auditor General completed three audits on the expenditure on the Government’s cash grant programme for individuals and business operators who have been financially affected by the Covid-19 pandemic, known as the Covid-19 Allocation of Resources for Employees (CARE) programme.¹³⁶

54.  The Political Ombudsman, which monitors the conduct of elections, encouraged greater enforcement by the police of Covid-19 guidelines during the campaign period.¹³⁷ The Political Ombudsman conducted a review of the 2020 General Election by interviewing some members of the public. Some participants observed that very little effort was made by the relevant authorities or the candidates to ensure that supporters obeyed the Covid-19 health and safety guidelines and laws. Participants also noted that violations included large gatherings, breaches of social distancing guidelines, and motorcades.¹³⁸

55.  The Government asked the Office of the Public Defender to review Covid-19 safety measures implemented at the prisons.¹³⁹ The Independent Commission of Investigations (INDECOM) monitors the conduct of the security forces, namely the police, army, and correctional officers. The Government addressed INDECOM’s early concern about its exclusion from the list of organizations exempt from curfew requirements given the importance of its oversight work during the pandemic.¹⁴⁰ INDECOM has not yet reported on the conduct of the security forces in the pandemic.

56.  The public health measures adopted in response to the pandemic were made primarily by way of orders promulgated by the Prime Minister under section 26 of the DRMA and policy guidelines from the Ministry of Health and Wellness. Most of these measures applied on a national scale, with some community or parish-specific measures introduced as necessary. Many measures, especially related to mobility restrictions, became long term ones that were reiterated or revised in successive DRMA orders.

57.  The measures adopted were introduced in three key phases. The first commenced on 29 January 2020,¹⁴¹ at the onset of the pandemic, and intended to delay its arrival. These restrictions were primarily travel-related and took the form of directives issued by the Ministry of Health and Wellness. On 13 March 2020, the Prime Minister declared the entire island a disaster area after confirmation of local transmission,¹⁴² marking the beginning of the second phase. The second phase saw the introduction of restrictions intended to limit movement and gatherings. The island’s ports were closed to arriving passengers during this time. The third phase, which began on 7 May 2020 with the reopening of borders to non-nationals,¹⁴³ saw notable relaxations in measures with intermittent tightening of restrictions in response to specific public health developments or around most public holidays. During this phase, the Government’s stated aim was to ‘balance lives and livelihoods.’¹⁴⁴ The Prime Minister revoked the Order declaring Jamaica a disaster area on 18 March 2022.¹⁴⁵

58.  One of the earliest orders, following the declaration of Jamaica as a disaster area on 13 March 2020, quarantined the residents in the community associated with the first confirmed case for a period of 14 days.¹⁴⁶ Similar parish- and community-specific quarantine zones were declared with respect to other geographical areas across the island during the second and third phases as infection rates soared in certain communities.

59.  Some form of national scale restriction on mobility has been sustained continuously by DRMA orders since 1 April 2020 through nightly curfews.¹⁴⁷ At their most permissive, curfew hours ran from 11pm nightly until 5am the following morning.¹⁴⁸ Curfew hours were most restrictive around public holidays. For the Labour Day holiday on 24 May 2020, for example, the curfew hours imposed were 3pm until 8am.¹⁴⁹ The curfew hours were also periodically tightened in response to increases in Covid-19 rates of infection. For example, the nightly curfew was expanded by two hours on 10 February 2021 after the island recorded over 400 cases in a day for the first time.¹⁵⁰

60.  Curfew orders have been subject to exceptions for persons employed in essential services, parliamentarians, the security forces, and members of the media, among others.¹⁵¹ Exemptions were also made for workers in key industries including those in tourist establishments and the sugar, bauxite and alumina, and business processing outsourcing industries.¹⁵²

61.  Older persons faced the most stringent restrictions on their mobility through orders to remain at home, which allowed them to leave home once per day for food, medicine, and other necessities of life. The initial orders applied to persons aged 75 years and older, but various subsequent orders included persons as young as 60 years old.¹⁵³

62.  Three types of work-from-home orders were made. At the beginning of the second phase, and again on 1 March 2021 as infection rates increased, public sector bodies were mandated to permit employees who can carry out duties from home to do so.¹⁵⁴ The second more general work-from-home order introduced on 16 March 2020, which applied also to the private sector, was more ambiguous.¹⁵⁵ It put a duty on an employer ‘if satisfied that an employee is able to discharge the duties of that employee from the employee’s place of residence, to grant the employee permission to do so without imposing any adverse consequences to the employee.’¹⁵⁶ Notably, this order afforded employers wide discretion to assess which functions could be performed from home, provided no mechanism to monitor enforcement or penalties for breach, and was disarticulated from employment legislation and mechanisms for resolving employment disputes. These qualities made the order more akin to guidance to employers than binding and justiciable law. The third order made on 1 June 2020 allowed employees who were immunocompromised or who had no alternative arrangements for childcare or for the care of an older or sick charge to ask employers for permission to work from home.¹⁵⁷

63.  In the first phase on 31 January 2020, following the WHO’s declaration that the novel coronavirus outbreak was a public health emergency of international concern, restrictions were placed on the entry into the country of non-nationals who had recently travelled to China.¹⁵⁸ Similar restrictions were extended to Italy, South Korea, Singapore, and Iran on 27 February, to Spain, France, and Germany on 10 March, and to the UK on 16 March 2020.¹⁵⁹ Non-citizens who had travelled to these countries were subject to immediate quarantine in a Government facility for a minimum of 14 days.¹⁶⁰ Under the Quarantine Act and its regulations, cruise lines were denied landing where their arrival posed a public health risk.¹⁶¹

64.  The aforementioned travel bans in January, February, and March 2020 were announced by the Ministry of Health and Wellness, and they do not make reference to their legal basis. However, under the Public Health Act, the Minister of Health, on receipt of a report from the Central Health Committee established under the Act¹⁶² of conditions tending to endanger public health, and in the absence of appropriate laws to address the danger, has broad powers to make an island-wide order to prevent or mitigate the danger.¹⁶³ The Attorney General is reported as having located the power to impose travel restrictions on foreigners in the Aliens Act 1946 and the Immigration Restriction (Commonwealth Citizens) Act 1945.¹⁶⁴ The latter statute applies only to Commonwealth citizens,¹⁶⁵ and the former permits an immigration officer to deny entry to an alien who is the subject of a certificate from a health officer that it is undesirable for the alien to be allowed to land because of medical reasons.¹⁶⁶ Notably, the early restrictions also impacted Jamaicans. For instance, Jamaican cruise ship workers were not granted landing privileges when requested.¹⁶⁷

65.  By a DRMA order, Jamaica closed its borders to all incoming passengers, regardless of nationality, from 25 March 2020 until 22 April 2020, with limited exceptions.¹⁶⁸ Thereafter, Jamaicans were permitted to enter under a ‘controlled re-entry’ programme which sought to control the rate of entry of nationals. Under the programme, Jamaican nationals were required to apply for travel authorisation through a designated website and could only travel after receiving authorisation to do so.¹⁶⁹ When the border reopened to non-nationals on 7 May 2020, they too were required to apply for travel authorisation.¹⁷⁰

66.  By 5 August 2020, all returning residents were required to quarantine for 14 days, regardless of the level of risk.¹⁷¹ All persons required to quarantine were subject to monitoring via an electronic device.¹⁷² Persons entering the island as tourists were required to remain at their accommodations within the area along the island’s northern and south-western coasts designated as the Resilient Corridor.¹⁷³ Business travellers who returned a negative test were required to stay at their accommodations, except to leave once per day for necessities of life or to conduct business.¹⁷⁴

67.  On 21 December 2020, to guard against the Alpha variant first documented in the UK, persons arriving in Jamaica who had been in the UK in the previous two weeks were subject to mandatory State quarantine and testing.¹⁷⁵ On 23 December 2020, direct travel from the UK was prohibited.¹⁷⁶

68.  Caps on the number of participants in public gatherings have been maintained through the pandemic, beginning with 20 persons on 18 March 2020.¹⁷⁷ During the period of relaxation of measures from 7 May 2020, exemptions were made for events like funerals and weddings to have up to 50 persons.¹⁷⁸ For a short period from 21 July to 27 August 2020, outdoor events were permitted with a maximum of 250 patrons.¹⁷⁹ Following record numbers of positive cases in February 2021, severe restrictions were again implemented beginning on 1 March 2021. These included the general prohibition of funeral services and burials (with limited exceptions for burials),¹⁸⁰ weddings were capped at 25 persons, and religious gatherings could not exceed 10 persons.¹⁸¹

69.  On 24 March 2020, educational institutions were ordered to close and most schools transitioned to online teaching.¹⁸² Secondary schools were reopened on 8 June 2020 to facilitate preparation for and taking of regional examinations.¹⁸³ Some schools were reopened on a phased basis from 5 October 2020.¹⁸⁴ Following the February 2021 spike, schools were again significantly restricted, and public schools were permitted to conduct face-to-face instruction only for students sitting exit examinations during the 2020–21 academic year.¹⁸⁵ This restriction was extended to all private and independent schools as of 4 March 2021, except for students with special educational needs.¹⁸⁶

70.  All places of entertainment were ordered to close on 18 March 2020.¹⁸⁷ The following month, on 22 April 2020, public beaches, water attractions, and other attractions were also closed.¹⁸⁸ Between 19 May and 15 July 2020, there was a gradual reopening of some of these facilities.¹⁸⁹

71.  Guidance on physical distancing was first provided by the Ministry of Health and Wellness on 15 March 2020.¹⁹⁰ The guidance progressed to a requirement in a DRMA order on 25 March 2020, which required persons at public gatherings to maintain a distance of three feet from other persons.¹⁹¹ This requirement was increased to six feet on 22 April 2020 and remains in force at the time of writing.¹⁹²

72.  Measures requiring the use of face coverings were introduced gradually during the second phase of the response. First, on 8 April 2020, persons who were aged 65 years or older, who had the flu or other respiratory illnesses, a comorbid illness, care of another person exhibiting respiratory symptoms, or who were suspected or confirmed to have Covid-19 were required to wear a face mask when in a public place.¹⁹³ This requirement was expanded to employees of food establishments on 21 April 2020.¹⁹⁴ By 22 April 2020, everyone was required to wear a face mask in public spaces, including workplaces and public passenger vehicles.¹⁹⁵

73.  The WHO’s IHRs 2005 define ‘isolation’ as the separation of ill or infected individuals and ‘quarantine’ as the restriction or separation of persons suspected of infection. The Jamaican orders use quarantine and isolation differently and applied both terminologies to persons who either tested positive for Covid-19 or were suspected of infection based on Covid-19-like symptoms. From 21 April 2020, persons in Jamaica who tested positive were required to quarantine at a facility designated by the Government or at home.¹⁹⁶ The period of quarantine was generally 14 days. Additionally, persons who were ill with Covid-19 or who displayed Covid-19 symptoms were required to isolate from other persons within the quarantine facility or place of residence.¹⁹⁷

74.  In the first phase, described in Part IV.A above, only symptomatic persons were tested.¹⁹⁸ Testing expanded to close contacts of confirmed cases as the Government’s testing capacity improved and, by 6 October 2020, some private facilities were authorized to test for Covid-19.¹⁹⁹ Persons critically ill with Covid-19 were treated in designated public hospitals.

75.  From 22 April and 7 May 2020 respectively, DRMA orders mandated testing for Jamaicans re-entering Jamaica after controlled re-entry of nationals was permitted and for visitors arriving to the island.²⁰⁰ With increasing arrivals of non-nationals, the requirements changed from mandatory testing to the presentation of a negative Covid-19 test with their applications for entry authorisation. Initially, this requirement applied to all tourists arriving for stay in the Resilient Corridor or other non-business visitors determined to be high risk for transmission of the virus.²⁰¹ By 11 March 2021, all arriving passengers, including Jamaican nationals and persons ordinarily resident in Jamaica, were required to present at the port of departure a Covid-19 negative test done no earlier than three days prior to departure.²⁰²

76.  Vaccination commenced on 10 March 2021, exactly one year after the first confirmed case in Jamaica.²⁰³ Frontline medical and health personnel as well as members of the security forces were the first priority groups for non-mandatory vaccination.²⁰⁴

77.  In addition to the tracing of contacts of confirmed cases by public health officials through telephone contact and home visits, self-reporting became mandatory on 18 March 2020 for all persons who develop flu-like symptoms and who may have had contact with a person who travelled to a country affected by the virus, or who tested positive for the virus.²⁰⁵ The Ministry of Health set up a Covid-19 hotline for this purpose. No obligations were placed on venues, for example visitor centres or hospitality premises, to collect the information of visitors.

78.  Since 18 March 2020, hospitals and nursing homes were required to limit each patient to one visit per day.²⁰⁶ Visitors to infirmaries, which house many indigent older persons, have been prohibited since 25 March 2020.²⁰⁷ Additionally, since that date, no patient of an infirmary has been allowed to go outside the facility, and no new patients have been admitted.²⁰⁸ As of 1 June 2020, employees of hospitals, nursing homes, and infirmaries were required to immediately report suspected exposure to the virus to their employer and to the Ministry of Health.²⁰⁹

79.  Enforcement of DRMA public health orders is mostly indirect. The personnel of the Jamaica Defence Force (JDF), the Jamaica Constabulary Force (JCF), and public health officials are authorized officers under the DRMA.²¹⁰ The Act gives authorized officers the power to direct the movement of persons, among other things, pursuant to a section 26 order made by the Prime Minister.²¹¹ Failure to comply with a direction given by an authorized officer, without a reasonable excuse, is an offence under the DRMA.²¹² Convictions for this offence attract a fine not exceeding $1 Million JMD (approximately $6800 USD) or imprisonment for a term not exceeding 12 months.

80.  At least one member of the Parliamentary Opposition called for the DRMA to be amended to afford greater oversight.²¹³ The DRMA was amended in 2021 to introduce an enforceable system of sanctions against persons who breach the public health measures.²¹⁴ However, the amendment did not add parliamentary oversight of the Prime Minister’s legislative power.

81.  The JCF and public health officials worked in tandem to inspect premises and generally enforce public health measures.²¹⁵ Under the DRMA orders, the JCF was also tasked with receiving electronic monitoring data for the purposes of enforcing quarantines.²¹⁶ Monitoring of persons under quarantine orders was done either through an application that persons were required to download to their phones or via telephone calls in cases where persons had internet connectivity issues. The JDF played an important role in the enforcement of quarantine areas in identified communities.²¹⁷ It also provided operational and logistics support for initiatives like the setting up of testing areas.²¹⁸

82.  There is no reliable data on compliance with Covid-19 public health measures in Jamaica. There have been repeated expressions of concern about breaches of measures related to curfews, gatherings, social distancing, and the wearing of masks in public spaces, as well as calls for greater compliance by the public.²¹⁹ Individuals have been arrested and charged for breaching orders on gatherings, the wearing of masks, and curfews.²²⁰ Given difficulties with enforcement, personal responsibility has been emphasized and the public has been asked to help with identifying persons who violate orders.²²¹

83.  Jamaica’s economy is described by the World Bank as an upper middle-income economy which experiences low growth, high public debt, and is vulnerable to external shocks.²²² Jamaica suffers from persistent poverty and high rates of unemployment, underemployment, and informal employment.²²³ In 2014, the annual value of Jamaica’s poverty line was estimated to be $169,044 JMD (approximately USD 1,150).²²⁴ Jamaica had a poverty rate of 12.6 per cent in 2018,²²⁵ and 11 per cent in 2019,²²⁶ which likely increased significantly during 2020.²²⁷ Jamaica calculates its poverty rate using a consumption methodology.²²⁸ The World Bank estimated an increase in the poverty rate to 23 per cent in 2020 as a result of Covid-19.²²⁹ Its unemployment rate, which stood at approximately 7.2 per cent in October 2019, rose to 10.7 per cent in October 2020.²³⁰ The unemployment rate which stood at 8.8 per cent as at January 2021, fell to 6.2 per cent as at January 2022.²³¹ In 2014, it was estimated that 37.1 per cent of employed persons in Jamaica were in the informal sector.²³² A joint 2020 study by UNICEF Jamaica and the Caribbean Policy Research Institute (CAPRI) reports a significant reduction in incomes as a result of the pandemic, with 50 per cent of the households in that study stating that they only had enough income or savings to sustain them for two weeks or less.²³³ The Government provided free but limited access to testing for Covid-19 and treatment for Covid-19-positive patients is administered at designated public hospitals.

84.  Social protection during the pandemic was provided mainly through a fiscal stimulus package of tax reduction and a spending programme, whose value is approximately 0.5 per cent of GDP, dubbed the COVID Allocation of Resources for Employees (CARE) Programme. There is no indication that the CARE Programme was specifically modelled on a programme elsewhere. CARE consists of largely new measures facilitated by new appropriation legislation to approve the radical changes in the budget and expenditures.²³⁴ Further legislation relaxed fiscal targets,²³⁵ and made changes in taxation.²³⁶ There is no indication that social actors or the parliamentary opposition played a significant role in crafting the stimulus measures. The parliamentary opposition supported the general thrust of the measures but criticised the Government for not increasing its level of support.²³⁷ Additionally, it asserted that some of the conditionalities meant that the programme was not accessible to some potential applicants, which the opposition argued was ‘entirely predictable, given the high level of informality in the Jamaican economy.’²³⁸ Following the announcement of the CARE Programme, the Government assembled a Covid-19 Economic Recovery Task Force, chaired by the Ministry of Finance and the Public Service, which included several other cabinet ministers, very strong private sector membership, representatives from the major economic industries, a civil society actor, and a representative of unions, but no opposition parliamentarians.²³⁹

85.  The measures, as detailed below, were aimed at improving the purchasing power of persons who had lost their income stream, providing relief to the poorest, and giving modest assistance to those in the informal economy.²⁴⁰ To date, there has been no litigation in relation to these measures.²⁴¹ The Programme of Advancement Through Health and Education (PATH) is Jamaica’s chief social assistance programme. Children from birth through to completion of tertiary level education, pregnant and lactating women, persons aged 60 years or older without a pension, persons certified to have permanent disabilities, and poor adults who are 18 to 59 years old can benefit from the programme. It is a conditional cash transfer programme which targets poor persons and families for assistance.²⁴² Households with children receive $4,000 JMD (approximately USD 27) bi-monthly.²⁴³ All PATH recipients automatically received an additional payment during the period from April to June 2020.²⁴⁴ In 2010, PATH had 340,000 beneficiaries.²⁴⁵ In 2014, there were 372,751 beneficiaries on PATH.²⁴⁶ In 2017, there were approximately 354,000 registered beneficiaries.²⁴⁷ For the 2020 calendar year under the programme, 303,746 recipients of the 331,780 registered beneficiaries received at least one payment.²⁴⁸ The responsible Minister reported in Parliament that expenditure on the programme up to March 2021 for the 2020/2021 fiscal year represented a 40 per cent increase compared to amounts expended over the same period in the 2019/2020 fiscal year.²⁴⁹ In November 2021, the Ministry of Labour and Social Security announced that approximately 10,000 families adversely affected by Covid-19, that were not PATH beneficiaries, would benefit from cash transfers of $5,000 JMD (approximately USD 34) per month over the disbursement period from a USD 1.085 million donation by the World Food Programme.²⁵⁰ Additionally, in July 2022 the Minister of Finance announced a $3.8 billion JMD (approximately USD 25.8 million) social intervention package which will include back-to-school one-off grants for PATH students and for vulnerable students not on PATH.²⁵¹

86.  The Supporting Employees with Transfer of Cash (SET Cash) programme formed part of CARE.²⁵² It provided temporary cash transfers to individuals from any sector who had a taxable income of less than or equal to $1.5 million JMD (approximately USD 10,200) per annum, where it could be verified that they had lost their employment after 10 March 2020 (1 JMD = 0.0068 USD). Persons approved for payment under the programme received $18,000 JMD (approximately USD 122) monthly. Initially set to run for three months from April 2020, the programme ran for nine months in 2020.²⁵³ The Government added three payments from June to August 2021,²⁵⁴ and a one-off payment for persons who received the August 2021 sum and remained out of work at the end of September 2021.²⁵⁵ No cash-for-work schemes were introduced.

87.  CARE also included Covid-19 General Grants which were one-off payments to certain categories of self-employed earners.²⁵⁶ Barbers, hairdressers, beauty therapists, cosmetologists, market vendors, and licenced taxi and bus operators received $25,000 JMD (approximately USD 170). Registered bar and night club operators, craft vendors, and registered bus tour operators received $40,000 JMD (approximately USD 272).

88.  The Compassionate Grant in CARE provided a one-off payment of $10,000 JMD (approximately USD 68) to anyone in need—including tertiary students, the unemployed, informally employed, the elderly, and pensioners—who was not formally employed and had not received—and did not intend to apply for—any other cash benefit under the CARE Programme, with the exception of the Covid-19 PATH Grant.²⁵⁷ Of the more than 500,000 applications to the CARE Programme, 401,314 were for the Compassionate Grant.²⁵⁸ The Ministry of Finance and the public service closed applications for the programme early, indicating that it could not allow applications to far exceed the budget allocated.²⁵⁹

89.  Non-contributory social pension coverage is low.²⁶⁰ Estimates in 2021 placed the number of persons over 60 living in Jamaica at 355,574.²⁶¹ As discussed below, contributory pension coverage is also low, which puts the need for non-contributory social pensions into sharp relief. PATH provides cash transfers to some persons aged 60 years or over who are not receiving a pension otherwise. It is estimated that 42 per cent of persons over 60 are not in receipt of either the National Insurance Scheme (NIS) pension or social assistance through PATH or Poor Relief.²⁶² In February 2021, the Cabinet gave approval for the immediate implementation of a social pension targeting non-pensioners who are 75 years and older in order to try to close the coverage gap.²⁶³ The programme was launched in August 2021. Beneficiaries receive a sum of $3,400 JMD (approximately USD 23) monthly.²⁶⁴ In December 2021 the Ministry of Labour and Social Security reported that the programme which has an annual budget of $800 million JMD (approximately USD 5.4 million) was undersubscribed and urged greater enrolment.²⁶⁵ In March 2022, the Government had made payments to 7,412 recipients and hopes to increase the number to 20,000 by the end of the 2022/2023 financial year.²⁶⁶

The shift to virtual learning during the pandemic spotlighted the lack of access to electronic learning devices faced by many students. This was the case despite the fact that the Government had instituted a large-scale project years prior to the pandemic meant to equip teachers and students with devices. The project has however been plagued by implementation issues.²⁶⁷ Some tablets were distributed to teachers and students during the period of the pandemic as a form of in-kind assistance.²⁶⁸ Under another programme, 36,000 students in need were to receive electronic vouchers (e-Vouchers) valued at $20,000 JMD for the purchase of a laptop at approved vendors.²⁶⁹ During May 2021, the Minister of Education announced that of the 20,207 vouchers issued, only 9,524 had been redeemed.²⁷⁰ However, the Government discontinued the programme. The Government also provided some PATH students with tablets.²⁷¹

90.  Jamaica does not have a general unemployment benefits scheme.²⁷² In June 2021, the Minister of Finance estimated that approximately 40,000 persons who became unemployed as a result of the pandemic received cash transfers under the SET Cash aspect of the CARE programme.²⁷³

91.  The Holiday With Pay Order 1973 provides paid sick leave for non-casual and casual workers.²⁷⁴ A worker is entitled to two weeks of paid sick leave, at the worker’s normal wage rate, after one year of employment.²⁷⁵ Workers cannot contract out of their entitlements under the Order.²⁷⁶ Workers who contracted Covid-19 could avail themselves of their existing entitlements. There have been no reforms to the Holiday with Pay legislation in relation to sick leave since the pandemic to give formal protection to workers who had already exhausted their entitlements. There have been calls for reform to the legislative framework for sick leave to take into account the impact of Covid-19-related illnesses, quarantine requirements, and caregiving duties.²⁷⁷ To-date there has been no law reform in this area.

92.  All employed and self-employed persons between 18 and 70 years are required to register with and make contributions to the National Insurance Scheme.²⁷⁸ Others may participate in the scheme via voluntary contributions. The Scheme provides a pension on retirement. According to the 2017 Jamaica Survey of Living Conditions, more than 60 per cent of persons aged 60 years and over did not receive a pension.²⁷⁹ Only 25.1 per cent of those 60 years and older reported that they were receiving a pension under the NIS.²⁸⁰ NIS coverage is low because of the large size of the informal economy and unemployment.²⁸¹ Of those receiving pensions, 33.3 per cent were receiving less than $10,000 JMD (approximately USD 68) monthly, and just under 33.3 per cent received over $60,000 JMD (approximately USD 408) monthly.²⁸² To-date there has been no law reform in this area.

93.  Legislation regulates occupational pension schemes for public and private sector workers.²⁸³ There have been no reforms to pension legislation to provide flexibility in withdrawing savings in pension funds amidst the economic hardships faced during the pandemic.²⁸⁴

94.  Jamaica does not have universal health care. It is aiming towards it through the National Health Fund (NHF) established in 2003 under the National Health Fund Act which, among other things, operates a drug subsidy programme.²⁸⁵ Jamaica also abolished user fees at public health institutions in 2008.²⁸⁶ It is estimated that only 20 per cent of the Jamaican work force has health insurance.²⁸⁷ The Government provided free but limited access to testing for Covid-19 and treatment for Covid-19-positive patients is being administered at designated public hospitals.

95.  The Covid-19 tax measures comprised a reduction in the rate of the General Consumption Tax from 16.5 per cent to 15 per cent,²⁸⁸ a tax credit for micro, small, and medium enterprises (MSME),²⁸⁹ and a reduction in export-related charges on certain commodities.²⁹⁰

96.  The Covid-19 Student Loan Relief measure provided deferrals of student loan principal and interest payments and a waiver of late fees for the period of April to June 2020 on loans currently in repayment to the Students’ Loan Bureau (SLB).²⁹¹ For loans in moratorium, the SLB extended the moratorium period from six to 14 months after graduation.

97.  The National Housing Trust (NHT)²⁹² provided a moratorium on all loan payments for three months, a reduction in interest rates on new loans by one per cent, and a reduction in all existing loans by 0.5 per cent.²⁹³ No other forms of housing support were provided.

98.  Two CARE Programmes gave temporary and modest employment protection—the BEST Cash and the, separate, Small Business Grants. The measures included efforts to protect businesses, especially in tourism and agriculture, which are major employment sectors. Tourism directly contributed 9.8 per cent to GDP in 2019 and is Jamaica’s chief source of foreign exchange. Agriculture employs about 15 per cent of the labour force and accounts for seven per cent of GDP.²⁹⁴ Notably, there was no major reform in employment law.

99.  The BEST Cash programme provided temporary cash transfers to registered businesses operating within the tourism industry based on the number of workers they kept employed who were at or under the income tax threshold of $1.5 million JMD per annum.²⁹⁵ Businesses approved for support under the programme received $18,000 JMD (approximately USD 122) monthly for each of those workers. There was no correlation between the workers’ regular salary and the sums transferred. Initially set to run for just three months, recipients received payments for nine months during 2020.²⁹⁶ The Government added three payments in 2021.²⁹⁷

100.  Businesses and self-employed persons operating in the tourism sector, including hotels, attractions, and tours, registered with the Tourism Product Development Company (TPDCO) received one-off payments of varying sizes from a pool of $1.2 billion JMD (approximately USD 7.9 million) allocated under the Tourism Grant.²⁹⁸ Businesses were not required to prove that they had employees in order to access this grant.

101.  Under the Small Business Grants programme, businesses with sales of $50 million JMD (approximately USD 340,000) or less, that filed taxes in the 2019/20 financial year and payroll returns indicating that they have employees, received a one-time payment of $100,000 JMD (approximately USD 680).²⁹⁹

102.  During the pandemic, the Government announced various interventions for farmers and fisherfolk. Under the Buy-Back programme, the Ministry of Agriculture and Fisheries helped farmers who lost their markets—largely due to the closure of hotels as a result of the pandemic—to sell their produce by purchasing the items and reselling them at pop-up farmers markets around the country and distributing them to children’s homes and communities in quarantine areas.³⁰⁰ Additional sums were allocated to the Ministry of Agriculture’s Production Incentive Programme, which was created prior to the pandemic to boost agricultural production in various areas by securing various inputs for farmers and fisherfolk.³⁰¹

103.  There have been no statutory reforms aimed at altering existing laws regarding the termination of employment and workers’ entitlement to severance payments since the pandemic.

104.  A worker is entitled to a redundancy payment if dismissed after two years of continuous employment with an employer.³⁰² The Employment (Termination and Redundancy Payments) Act allows an employer to temporarily lay off workers without pay for 120 days.³⁰³ If the layoff extends beyond that period, the worker can elect to be regarded as dismissed by reason of redundancy.³⁰⁴ In that case, the worker becomes entitled to redundancy payments in accordance with the Act, upon giving notice of that election. The Jamaica Hotel and Tourist Association requested that the Government extend the lay off period beyond 120 days, but the Ministry of Labour encouraged employers and employees to renegotiate terms of employment in light of the pandemic.³⁰⁵

105.  Several Disaster Risk Management Act 2015 (DRMA) orders required workplaces to take steps to safeguard health and safety.³⁰⁶ Those steps included providing facilities for washing or sanitizing hands, ensuring at least six feet of social distancing where reasonably practicable, and ensuring that effective ventilation systems are in operation.³⁰⁷ These requirements were not readily enforceable by employees. Jamaica has not enacted occupational health and safety legislation. The proposed Occupational Safety and Health Bill 2017 would have imposed a stronger regulatory framework for safety at work and would have given employees greater protection to refuse to undertake unsafe or dangerous work by making express their right to do so and by providing protections against victimisation by employers.³⁰⁸ In practice, Jamaican workers exercise a right of industrial action and enjoy some protection from ‘unjustifiable dismissals’.³⁰⁹ However, in law, strike actions amount to repudiatory breach of the contract of employment which could lead to lost wages. Various stakeholders—including private sector, trade union representatives, and advocates for persons living with HIV and AIDS—through the years have called upon successive administrations to prioritise the enactment of occupational health and safety legislation.³¹⁰ The current responsible Minister has promised that the bill will be brought to Parliament for the 2022/2023 parliamentary year.³¹¹ However, similar promises have been made in the past and yet, to-date, administrations on both sides of Jamaica’s political divide have failed to deliver on those promises. ³¹²

106.  There is no relevant information to be reported.

107.  There is no relevant information to be reported.

108.  There is no relevant information to be reported.

109.  Curfew orders, quarantine and isolation orders, and restrictions on gatherings (discussed in Part IV.A above) had implications for the rights to freedom of peaceful assembly and association and the right to freedom of movement.³¹³ Early measures barring citizens from entering the country after a specified date caused significant hardship to many Jamaicans overseas and gave rise to sustained debate about whether this restriction on freedom of movement was demonstrably justified in a free and democratic society.³¹⁴ Many Jamaicans were stranded in foreign countries as a result, including seasonal workers, cruise ship workers, and students.³¹⁵ The threat of legal action by some Jamaican ship workers stranded aboard a ship dissipated after the workers were given leave to re-enter.³¹⁶ Freedom of religion has been impacted by the restrictions on religious gatherings.³¹⁷ On occasion, church leaders and members have found themselves in conflict with law enforcement as this measure was enforced. ³¹⁸ There has been no suppression of dissent or of the small protests which have been held against mask wearing,³¹⁹ vaccines,³²⁰ and against some measures which inhibited economic activity.³²¹

110.  The Constitution guarantees the right of everyone to respect for and protection of their private and family life and the protection of privacy of other property and of communication.³²² A Disaster Risk Management Act 2015 (DRMA) order introduced restrictions on the publication of information that discloses the identity of persons who tested positive for Covid-19 and their health workers in April 2020. However, these restrictions are not directly backed by sanctions.³²³ Other measures, such as social assistance measures, require the submission of personal data. Persons seeking to enter Jamaica were required to apply for entry via dedicated websites.³²⁴ Recently enacted data protection legislation, which could better safeguard privacy rights, is not yet fully in effect.³²⁵ Exercising his power under section 1 of the Data Protection Act, the responsible Minister brought specified sections of the Act into effect on 30 November 2021 which begin the process of operationalising it.³²⁶ The responsible Minister has said that the regulations necessary for completing the operationalisation of the Act will be completed by September 2022.³²⁷ In February 2021, reports revealed that the personal information of thousands of travellers using the websites was exposed, including ‘check-in’ videos, immigration documents, and Covid-19 test results.³²⁸

111.  Beginning on 15 June 2020, all persons required to quarantine were subject to monitoring of their health status and location.³²⁹ This measure remained in place until 28 February 2022.³³⁰ The JamCovid app, which persons under quarantine orders were required to download to their mobile devices,³³¹ generated location data³³² and users monitored and put in their temperature. Local health officials monitored the health of persons under such orders via telephone calls. Technical personnel responsible for implementing the monitoring could only by law disclose data to a member of the police force designated by the Commissioner of police who was not below the rank of Inspector and a Medical Officer.³³³ The relevant DRMA orders provided that the electronic monitoring must be terminated following the expiration of the quarantine period and that the information obtained must be stored in a secure manner for the duration of the quarantine, must be accessible only by relevant personnel, and should be deleted upon the expiration of the quarantine.³³⁴

112.  The Covid-19 pandemic had significant adverse social and economic implications for women, exacerbating existing gender inequalities. Women’s participation in frontline industries such as education, health, and social work, far outstrips participation by men.³³⁵ While men would have borne the greater share of Covid-19’s impact on the informal sector, women bore the greater share of its impact on the service industry.³³⁶ Between October 2019 and October 2020, women’s unemployment grew at a faster rate than men’s,³³⁷ increasing by approximately 4.4 per cent, whereas male unemployment increased by approximately 2.7 per cent. This is in a context where the unemployment rate for women is consistently higher than that of men.³³⁸ Women benefited slightly more than men from the eventual fall in the unemployment rate, with women accounting for 53.1 per cent of the increase in employment from April 2021 to April 2022.³³⁹

113.  Poor women, who are disadvantaged by the burden of unpaid care work, are reported to have had an increased burden of unpaid care work since the onset of the pandemic.³⁴⁰ The joint UNICEF/CAPRI study reports a greater loss in income for female-headed households caused by the pandemic.³⁴¹ The social protection measures introduced offered no direct relief for the added burden of unpaid care work, especially in relation to children.

114.  Although there is no reliable data on the prevalence of violence against women, including intimate partner violence, either before or during the pandemic, ³⁴² the Minister of Gender, Culture, Entertainment and Sports advised the House of Representatives of an increase in domestic violence cases and noted that the ‘stay-at-home measures that countries have had to implement had the unfortunate side effect of having women and children locked up with their abusers, sometimes without access to family or friends or an opportunity to call for help.’³⁴³ The Government opened two long-awaited State-run shelters for survivors of domestic violence; the first in November 2020³⁴⁴ and the second in December 2021.³⁴⁵

115.  The Inter-American Commission on Human Rights noted in 2012 that ‘[p]olice officers are averse to enforcing laws related to domestic violence, which results in the victims’ mistrust of the law enforcement system.’³⁴⁶ In a reported incident in November 2020, a survivor of domestic violence fled her abuser during curfew hours and went to a nearby police station to report abuse, only to be turned away and asked to return outside curfew hours.³⁴⁷ Following media reports of the incident, the Jamaica Constabulary Force and INDECOM announced the launch of investigations and the Police Commissioner indicated that police stations would remain open for 24-hour service.³⁴⁸ However, it must be noted that the incident is consistent with persistent due diligence failures.³⁴⁹

116.  The discrimination and vulnerability faced by Lesbian, Gay, Bisexual, Transgender, Queer persons (LGBTQ) persons in Jamaica, especially those who are poor, has worsened in the crisis. An online survey carried out in April 2020 by a group of organisations working on behalf of LGBTQ persons in Jamaica found that almost one in four respondents had lost their jobs as a result of the pandemic and 29 per cent were unable to pay rent and other bills.³⁵⁰ There are limited employment opportunities available to transgender women in particular. Many are engaged in sex work or work in the entertainment industry, both of which have been severely impacted by the curfew restrictions.³⁵¹ In December 2020, the Inter-American Commission on Human Rights said that Jamaica’s laws criminalising same-sex sex violated its obligations under the American Convention on Human Rights and called on Jamaica to repeal these laws and adopt comprehensive antidiscrimination legislation and apply due diligence in the prevention, investigation, punishment, and reparation of violence against LGBTQ persons.³⁵²

117.  There is no relevant information to be reported.

118.  Persons with disabilities have a greater likelihood to live in poorer households than those without.³⁵³ Educational attainment is limited for persons from poor households and they experience higher levels of unemployment than persons without disabilities.³⁵⁴ Jamaica’s Disabilities Act 2014 came into effect on 14 February 2022.³⁵⁵ Thus, persons with disabilities did not have the benefit, during the height of the pandemic, of its provisions which aim at quelling discrimination against such persons.³⁵⁶ The pandemic has further exposed the vulnerabilities of many persons with disabilities and the inadequacies in existing systems, including in special needs education.³⁵⁷

119.  Some persons with disabilities are covered by PATH and thus also benefited from the recent one-off cash transfer under the CARE Programme to persons with disabilities (see Part V.A.1 above).³⁵⁸ The Combined Disabilities Association (CDA), an NGO advocacy group, indicated that conditioning eligibility on registration with the Jamaica Council of Persons with Disabilities (JCPD) disenfranchised a large number of people in need, since only a fraction of persons with disabilities are registered with the JCPD. Registration requires certification by a medical doctor or health care professional who is competent to make the disability assessment. The CDA’s Director explained that the requirement operated as a barrier to registration and access to the grant.³⁵⁹

120.  DRMA orders containing workplace measures provided that employees could request the permission of their employer to work from home in order to care for a family member with a disability as defined in the Disabilities Act.³⁶⁰ These employment measures were not backed by sanctions.

121.  With the exception of the DRMA order of 1 March 2021, none of the orders governing the operation of educational institutions made special provision for the education of students with special needs.³⁶¹ That order provided for face-to-face instruction for students who will sat exit exams during the 2020/21 academic year and for students with special educational needs.³⁶²

122.  The Government adopted a variety of measures concerning the employment, safety, and care of older persons (see in particular, Part IV.A.1 above). This group has faced the most restrictive stay-at-home DRMA orders, which are aimed at reducing their risk of contracting Covid-19. Nonetheless, there were concerns about the effect of prolonged periods of isolation, and the increased risk of abuse and neglect where there are limited opportunities to engage with their support networks.³⁶³ Older persons are among the early priority groups for vaccination. On 9 March 2021, the Government announced plans to institute a Conditional Cash Transfer programme as an incentive for older persons to be vaccinated.³⁶⁴

123.  The Constitution provides that children are entitled to such measures of protection as are required by virtue of the status of being a minor or as part of the family, society, and the State.³⁶⁵ As discussed in Part III.C above, courts have prioritized all matters relating to children for speedy and effective resolution.

124.  Children’s constitutional right to publicly funded tuition in a public educational institution at the pre-primary and primary levels was severely impaired during the pandemic.³⁶⁶ The shifts to online teaching and learning exposed the digital divide which runs along rural-urban and socioeconomic lines.³⁶⁷ Here the pandemic spotlighted and worsened existing inequalities.³⁶⁸ According to UNICEF, children in 34 per cent of households do not have exclusive access to an internet device for education purposes.³⁶⁹ One rural area respondent in a 2021 Caribbean Policy Research Institute (CAPRI) study pointed to the multiple ways in which children and families were adversely impacted by the shift to online teaching and learning:

Up here we struggle to access the network. However, even if the service was available I cannot afford it. My husband and I can barely provide food for our children and pay bills; we cannot afford additional cost and we do not have computers, etc. I would prefer a shift system at the school instead of closing it and having the children at home with nothing to do. At school, the children would receive a hot meal and this helps to reduce the pressure on me.³⁷⁰

125.  The pandemic also brought into focus the ineffective implementation of existing programmes for the distribution of tablets as well as the weak broadband infrastructure in schools.³⁷¹ In response, the Government, among other things, provided some schools in remote areas with internet access,³⁷² launched an educational channel dedicated to delivery of educational content,³⁷³ and provided additional internet devices to some students and teachers. Notwithstanding those interventions, it is widely accepted that there has been significant learning loss for all children, especially the poorest.³⁷⁴

126.  Preliminary findings from a UNICEF and CAPRI study on the effect of the Covid-19 pandemic on Jamaican children indicates that 15 per cent of households surveyed reported an increase in spanking children and 41 per cent of households surveyed indicated that there was an increase in the frequency of shouting at children.³⁷⁵ The Paediatric Association of Jamaica reported an increase in cases of child sex abuse during the pandemic,³⁷⁶ while the National Children’s Registry indicated a decline in reports of abuse in 2020.³⁷⁷ Since the mechanisms for discovery of abuse and access to reporting are weakened in the crisis, the discrepancy may signal, as the Children’s Advocate suggests, less reporting and not less violence.³⁷⁸

127.  There have been outbreaks of Covid-19 and related deaths in correctional facilities.³⁷⁹ When concerns were raised early in the pandemic about the spread of Covid-19 in overcrowded correctional institutions, the Government rejected calls to grant early release in some cases to reduce the risk of an outbreak in the prison population.³⁸⁰ The Department of Correctional Services reported in October 2021 that 332 inmates and 290 staff members had recovered from the virus and that seven inmates and four officers died from the virus.³⁸¹ There are approximately 4,000 inmates in Jamaica’s prison population.³⁸² The Department of Correctional Services reported that it adopted measures to curb the spread of Covid-19. Those included temperature checks for all persons entering the institutions, the implementation of handwashing and sanitization stations along with the provision of thermometers and sanitizing agents at all correctional institutions.³⁸³ Additionally, cloth masks were prohibited, and surgical masks distributed to inmates and officers. Inmates in one correctional facility reported continued overcrowding and that inmates who tested negative for Covid-19 were mixed in with others who showed signs of possible infection.³⁸⁴

128.  Since 6 May 2020, access to persons incarcerated in correctional institutions was limited to members of staff of the correctional institution, attorneys representing inmates, and health care providers.³⁸⁵ An advocacy group called for communication between inmates and their families to be facilitated using online tools.³⁸⁶ Non-contact visits were resumed in March 2022.³⁸⁷ There was no special guidance on habeas corpus during the reporting period.

129.  Jamaica has high rates of pre-trial detention.³⁸⁸ The earliest practice directions from the courts, considered in Part III.C above, sought to protect the right to liberty by ensuring that even during periods of closure or reduced service, bail hearings were dealt with as emergency matters.³⁸⁹ Persons on bail who were scheduled to return to court during periods of closure had their bail automatically extended, and when the parish of St Catherine was made a quarantine area, bail reporting conditions were suspended.³⁹⁰ Additionally the Supreme Court and some parish courts shifted to videoconferencing for bail hearings.³⁹¹ In a few instances where some parish courts could not accommodate those applications, directions were given for matters to be heard by the Supreme Court instead.³⁹²

130.  Save for the establishment of resilient corridors along the ‘North Coast and South Coast to encourage safe tourism practices through delivery of service that conforms to a rigorous set of tourism, health and safety protocols’, there have been no special measures related to permanent residents, migrant workers, or refugees.³⁹³

131.  There is no relevant information to be reported.

Gabrielle Elliott-Williams, The University of the West Indies, Mona

Tracy Robinson, The University of the West Indies, Mona

Kamille Adair Morgan

Jeffrey Foreman, The University of the West Indies, Mona

Dionne Jackson-Miller, The University of the West Indies, Mona

Tenesha Myrie, The University of the West Indies, Mona

The authors would like to acknowledge Susan Goffe for her contribution.